THE  LIBRARY 

OF 

THE  UNIVERSITY 
OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 
GIFT  OF 

Pacht,  Tannenbaum,  &  Ross 


tyW*-**1UCJ** 


Leading  Cases 

on 

American 
Constitutional    Law 


BY  LAWRENCE  B.  EVANS,  Ph.  D. 

itt 

Of  the  Massachusetts  Bar 


We  must  never  forget  that  it  is  a  con- 
stitution we  are  expounding. 

—  Chief  Justice  Marshall 

Constitutional  law  like  other  mortal 

contrivances  has  to  take  some  chances. 

—  Justice  Htlmes 


CHICAGO 

CALLAGHAN  AND  COMPANY 
1916 


COPYRIGHT,  1916 
BY 

CALLAGHAN  &  COMPANY 


T 

co 


TO  MY  FRIEND 
SAMUEL  W.  McCALL 

STATESMAN 
DEFENDER  OF  CONSTITUTIONAL  LIBERTY 


G48348 


PREFACE 

The  intended  scope  of  this  book  would  have  been  indicated 
more  accurately  if  the  title  were  "Some  Leading  Cases  on  Some 
Leading  Topics  in  American  Constitutional  Law."  Accuracy  of 
description  however  had  to  be  sacrificed  to  brevity,  which  indeed 
is  the  dominant  note  of  every  part  of  the  book.  This  makes  it 
necessary  to  explain  that  the  present  collection  is  an  attempt  to 
bring  together  within  the  compass  of  about  four  hundred  pages 
as  many  as  possible  of  the  decisions  of  the  Supreme  Court  of  the 
United  States  interpreting  the  Federal  Constitution.  Because  of 
limitations  of  space  no  attempt  has  been  made  to  cover  the  whole 
subject.  Important  topics,  such  as  eminent  domain,  ex  post  facto 
legislation,  bankruptcy,  and  the  war  power,  have  been  omitted 
altogether  in  the  belief  that  the  fuller  treatment  of  other  topics 
which  such  omissions  made  possible  would  give  the  collection 
added  value.  Sixty-four  cases  are  here  included.  The  basic  de- 
cisions in  which  the  important  doctrines  of  constitutional  law 
are  first  elaborated,  such  as  McCulloch  v.  Maryland,  Qibbons  v. 
Ogden,  and  Cooley  v.  The  Wardens  of  the  Port,  are  reprinted 
with  considerable  fullness,  while  the  later  decisions  of  a  less 
fundamental  character  are  much  abbreviated.  In  every  instance 
however  the  facts  out  of  which  the  controversy  arose  are  given, 
as  well  as  a  sufficient  portion  of  the  opinion  to  show  why  the 
court  decided  as  it  did.  The  texts  of  all  the  decisions  made  since 
the  beginning  of  the  December  Term,  1855  (18  Howard),  are 
taken  from  the  official  reports.  The  texts  of  decisions  made  prior 
to  that  time  are  taken  from  Curtis'  Decisions  of  the  Supreme 
Court  of  the  United  States.  Except  for  omissions  or  para- 
phrases which  are  indicated  in  the  usual  way,  the  texts  followed 
have  been  reproduced  verbatim  et  literatim. 

I  have  tried  to  meet  the  needs  of  two  classes  of  students.  First, 
I  have  had  in  mind  students  in  law  schools  where  the  amount  of 
time  given  to  the  subject  does  not  warrant  the  use  of  the  larger 
casebooks.  It  is  for  them  especially  that  the  numerous  references 
to  other  cases  have  been  included  in  the  notes.  Second,  I  have 
had  in  mind  college  and  university  classes  in  government  and 


vi  PREFACE. 

constitutional  history,  and  for  their  assistance  I  have  inserted 
references  to  many  monographs  and  treatises,  nearly  a  hundred 
in  all,  bearing  upon  the  historical  as  well  as  the  legal  aspects  of 
the  topics  treated. 

In  the  apportionment  of  space  to  the  various  topics  there  might 
well  be  difference  of  opinion.  In  general  those  branches  of  the 
subject  in  which  new  questions  are  coming  up  have  been  empha- 
sized rather  than  those  in  which  the  law  is  well  settled.  The  last 
four  chapters,  comprising  nearly  half  the  book,  are  devoted  to 
the  commerce  clause  and  the  Fourteenth  Amendment,  which  finds 
its  justification  in  the  fact  that  far  more  than  half  of  all  the 
constitutional  questions  which  now  go  to  the  Supreme  Court  for 
adjudication  arise  out  of  those  two  parts  of  the  Constitution. 
There  might  also  be  difference  of  opinion  as  to  the  classification 
of  the  cases  included  in  the  collection.  Many  of  them  belong  to 
one  chapter  almost  as  much  as  to  another.  In  settling  this  vexed 
question,  I  have  not  been  so  anxious  to  attain  a  logical  classifi- 
cation as  I  have  been  to  place  each  case  where  it  could  be  used 
most  effectively  for  purposes  of  instruction.  For  instance,  such  a 
case  as  Leisy  v.  Hardin  might  be  looked  for  in  the  chapter  on 
commerce,  but  it  seemed  to  me  that  the  study  of  that  case  could 
best  be  approached  from  the  standpoint  of  the  police  power.  And 
so  as  to  many  others. 

In  adding  another  to  the  multitude  of  books  dealing  with  con- 
stitutional law,  I  would  adopt  as  my  own  the  quaint  language  of 
old  Bellewe,  who  says  in  the  preface  to  his  Les  Ans  du  Roy 
Richard  le  Second,  "Beseeching  you  that  where  you  shall  finde 
any  faultes,  which  either  -by  my  insufficiency,  the  intricatenes 
of  the  worke,  or  the  Printers'  recklesnes  are  committed,  either 
friendly  to  pardon,  or  by  some  means  to  admonish  me  thereof. ' ' 

LAWRENCE  B.  EVANS. 
701  Barristers  Hall,  Boston. 
November  1,  1915. 


TABLE  OF  CONTENTS 


Page 
Preface    .......................................................     T 

Table  of  Contents  ................................................  vii 

The  Constitution  of  the  United  States  ..............................    xi 

CHAPTEB  I. 
THE  AMERICAN  SYSTEM  OF  GOVERNMENT. 

{  1.  THE  SUPREME  LAW  or  THE  LAND. 

Marbury  v.  Madison  (1803),  1  Cranch,  137  .................     1 

1  2.  IMPLIED  AND  INHERENT  POWERS  or  THE  FEDERAL  GOVERNMENT. 

McCulloeh  v.  Maryland    (1819),  4  Wheaton,  316  ............  12 

In   re  Neagle   (1890),  135  U.  8.  1  ........................  28 

Fong  Yue  Ting  v.  United  States  (1893),  149  U.  8.  698  .......  35 

I  3.  THB  RELATIONS  or  THE  FEDERAL  GOVERNMENT  AND  THE  STATES. 

Crandall  v.   Nevada    (1867),  6  Wallace,  35  .................  42 

Texas  v.  White  (1868),  7  Wallace,  700  ....................  46 

Tarble's  Case   (1871),  13  Wallace,  397  .....................  53 

§  4.  THE  GOVERNMENT  or  TERRITORIES  AND  DEPENDENCIES. 

American  Insurance  Co.  v.  Canter  (1828),  1  Peters,  511  .....  59 

Callan  v.  Wilson  (1&88),  127  U.  8.  540  .....................  62 

Downes  v.  Bidweli  (1901),  182  U.  &  244  ..................  65 

CHAPTER    II. 
IN  THE  UNITED  STATES. 


{  1.  WHO  ARE  CITIZENS. 

Scott  T.  Sandford  (1857),  19  Howard,  393  .................  80 

United  States  v.  Wong  Kim  Ark  (1898),  169  U.  8.  649  ......  94 

I  2.  PRIVILEGES  AND  IMMUNITIES  or  CITIZENS  or  THE  UNITED  STATES. 

Slaughter  House  Cases   (1873),  16  Wallace,  36  .............  104  v 

Twining  T.  New  Jersey  (190S).  211  U.  S.  78  .........  114   * 

Guinn  and  Seal  T.  United  States  (1915),  238  U.  8.  347  .....  119 

vii 


viii  CONTENTS 

Page 
CHAPTER  III. 

THE  JURISDICTION  OF  THE  FEDERAL  COURTS. 

Chisholm  v.  Georgia  (1793),  2  Dallas,  419 126 

Cohens  v.  Virginia   (1821),  6  Wheaton,  264 132 

Cherokee  Nation  v.  Georgia   (1831),  5  Peters,  1 142 

Luther  v.  Borden  (1848),  7  Howard,  1 148 

South  Dakota  v.  North  Carolina  (1904),  192  U.  S.  286 153 

CHAPTER  IV. 
THE  IMPAIRMENT  OF  CONTRACTS. 

§  1.  WHAT  is  A  "  CONTRACT.  ' ' 

Dartmouth  College  v.  Woodward   (1819),  4  Wheaton,  518 160 

§  2.  THE  CONSTRUCTION  OF  GRANTS  PROM  A  STATE. 

Charles   Elver  Bridge  Co.   v.   Warren  Bridge  Co.    (1837),   11 
Peters,    420    171 

§  3.  WHAT  is.  AN  IMPAIRMENT  OF  THE  OBLIGATION  OF  A  CONTRACT. 

Sturges  v.   Crowninshield    (1819),  4  Wheaton,   122 178 

CHAPTER  V. 
MONET. 

§  1.  BILLS  OF  CREDIT. 

Craig  v.  Missouri   (1830),  4  Peters,  410 185 

Briscoe  v.  Bank  of  Kentucky  (1837),  11  Peters,  257 190 

§  2.  LEGAL  TENDER  NOTES. 

Juilliard  v.  Greenman   (1884),  110  TJ.   S.  421 195 

CHAPTER  VI. 
TAXATION. 

§  1.  WHAT  is  A  TAX. 

Loan  Association  v.  Topeka  (1874),  20  Wallace,  655 205 

§  2.  THE  TAXATION  OF  AGENCIES  OF  GOVERNMENT. 

McCulloch  v.  Maryland   (1819),  4  Wheaton,  316 212 

Veazie  Bank  v.  Fenno   (1869),  8  Wallace,  533 220 

The  Collector  v.  Day  (1870),  11  Wallace,  113 224 

South  Carolina  v.  United  States   (1905),  199  U.  S.  437 229 


CONTENTS  ix 

Page 
I  3.  DIRECT  TAXES. 

Hylton  T.  United  States   (1796),  3  Dallas,  171 234 

Pollock  T.  Farmers'  Loan  and  Trust  Co.  (1895),  158  U.  &  601.  .238 

CHAPTEB   VII. 
THE  REGULATION  OF  COMMERCE. 

1 1.  WHAT  is  COMMERCE. 

Gibbons  v.  Ogden   (1824),  9  Wheaton,   1 245 

Paul  v.  Virginia  (1868),  8  Wallace,  168 251 

Penscola  Telegraph  Co.  v.  Western  Union  Telegraph  Co.  (1877), 

96  U.  8.  1 254 

United  States  T.  E.  C.  Knight  Co.  (1895),  156  U.  S.  1 258 

|  2.  FEDERAL  JURISDICTION  OVER  COMMERCE. 

Gibbons  v.  Ogden  (1824),  9  Wheaton,  1 263 

Brown  v.  Maryland  (1827),  12  Wheaton,  419 280 

Cooley  v.  The  Wardens  of  the  Port  (1851),  12  Howard,  299.  .293 

In  re  Debs  (1895),  158  U.  S.  564 300 

Houston,  East  and  West  Texas  By.  Co.  T.  United  States  (The 
Shreveport  Case)   (1914),  234  U.  8.  342 306 

S  3.  WHAT  is  A  REGULATION  or  COMMERCE. 

Addystone    Pipe    and    Steel    Co.    T.    United    States    (1899), 

175  U.  8.  211 310 

Lottery  Case  (Champion  T.  Ames)   (1903),  188  U.  3.  321 313 

CHAPTEB  VIII. 
DUE  PROCESS  OP  LAW. 

1 1.  GENERAL  CONCEPTION  or  DUE  PROCESS. 

Twining  v.  New  Jersey  (1908),  211  U.  8.  78 319   * 

International  Han-ester  Co.  v.  Kentucky  (1914),  234  U.  8.  216.329 

f  2.  DUE  PROCESS  IN  PROCEDURE, 

Hurtado  T.  California   (1884),  110  U.  8.  516 331    * 

f  3.  DUE  PROCESS  AS  TO  LIBERTY  AND  PROPERTY. 

Wadley  Southern  Bailway  Co.  T.  Georgia   (1915),  235  U.  8. 

651    338 

Coppage  T.  Kansas  (1915),  236  U.  8.  1 343 

CHAPTEB  IX. 
THE  EQUAL  PROTECTION  OP  THE  LAWS, 

1 1.  BACE  DISCRIMINATION. 

Strauder  v.  West  Virginia  (1879),  100  U.  8.  303 351 

Yi«  k  Wo  v.  Hopkins  (1886),  118  U.  8.  356 356  X 


x  CONTENTS 

Page 
§  2.  LEGISLATION  FOB  CLASSES. 

Barbier  v.  Connolly  (1885),  113  U.  S.  27 360 

Missouri,  Kansas  &   Texas  Bailway  Co.  v.  May    (1904),   194 

U.  S.  267 363 

Central  Lumber  Co.  v.  South  Dakota  (1912),  226  U.  S.  157 364 

Patsone  v.  Pennsylvania  (1914),  232  U.  S.  138 367 

CHAPTER  X. 
THE  POLICE  POWER. 

§  1.  THE  PEOTECTION  OP  HEALTH. 

Railroad  Company  v.  Husen  (1877),  95  U.  S.  465 370 

Holden  v.  Hardy   (1898),  169  U.  S.  366 374 

§  2.  THE  PROTECTION  OF  MORALS. 

Mugler  v.  Kansas  (1887),  123  U.  S.  623 377 

Leisy  v.  Hardin   (1890),  135  U.  S.  100 382 

§  3.  THE  PRESERVATION  OF  SAFETY  AND  ORDER. 

Escanaba  Company  v.  Chicago  (1882),  107  U.  S.  678 389 

City  of  Chicago  v.  Sturges  (1911),  222  U.  S.  313 395 

Adams  Express   Company  v.  City  of  New  York    (1914),   232 

U.  S.  14 398 

Atlantic  Coast  Line  Railroad  Co.  v.  Georgia  (1914),  234  U.  S. 
280     403 

§  4.  THE  PROMOTION  OF  THE  GENERAL  WELFARE. 

Plumley  v.  Massachusetts  (1894),  155  U.  S.  461 407 

Sligh  v.  Kirkwood   (1915),  237  U.  S.  52 410 

§  5.  THE  REGULATION  OF  PUBLIC  CALLINGS. 

Munn  v.  Illinois  (1876),  94  U.  S.  113. . 413 

Northern  Pacific  Railroad  Co.  v.  North  Dakota   (1915),   236 
U.  S.  585 421 

Table  of  Cases 429 

Index  . .443 


The  Constitution  of  the 
United  States.1 

"^°'>v-o^J7"  ~  4-v 

1  WE  THE  PEOPLE  of  the  United  States,  in  Order  to  form  a  more 
perfect  Union,  establish  Justice,  insure  domestic  Tranquility, 
pro^8c-'for  the  common  defence,  promote  the  general  Wel- 
fare, and  secure  the  Blessings  of  Liberty  to  ourselves  and  our 
Posterity,  do  ordain  and  establish  this  Constitution  for  the 
United  States  of  America. 

ARTICLE  I. 

*  SECTION  1.  All  legislative  Powers  herein  granted  shall  be 
vested  in  a  Congress  of  the  United  States,  which  shall  consist  of 
a  Senate  and  House  of  Representatives. 

8  SECTION.  2.  The  House  of  Representatives  shall  be  composed 
of  Members  chosen  every  second  Year  by  the  People  of  the  sev- 
eral States,  and  the  Electors  in  each  State  shall  have  the  Qualifi- 
cations requisite  for  Electors  of  the  most  numerous  Branch  of 
the  State  Legislature. 

4  No  Person  shall  be  a  Representative  who  shall  not  have  at- 
tained to  the  Age  of  twenty  five  Years,  and  been  seven  Years  a 
Citizen  of  the  United  States,  and  who  shall  not,  when  elected,  be 
an  Inhabitant  of  that  State  in  which  he  shall  be  chosen. 

5  Representatives  and  direct  Taxes  shall  be  apportioned  among 
the  several  States  which  may  be  included  within  this  Union,  ac- 
cording to  their  respective  Numbers,  [which  shall  be  determined 

»  The  text  of  the  Constitution  here  given  is  that  printed  in  Farrand,  The 
Eecordt  of  the  Federal  Convention  of  1787,  II,  651,  which  is  intended  to  be 
an  exact  reprint  of  the  original.  The  text  of  the  first  fifteen  Amendments  is 
taken  from  American  History  Leaflet*,  No.  8,  edited  bj  A.  B.  Hart  and  E. 
('banning,  and  based  upon  copies  made  from  the  originals  by  the  editors. 
The  text  of  the  Sixteenth  and  Seventeenth  Amendments  is  taken  from  the 
proclamations  of  the  Secretary  of  State  declaring  them  to  have  been  duly 
adopted.  For  convenience  of  reference  the  present  editor  baa  numbered 
the  paragraphs  continuously. 

ri 


xii  CASES  ON  CONSTITUTIONAL  LAW. 

by  adding  to  the  whole  Number  of  free  Persons,  including  those 
bound  to  Service  for  a  Term  of  Years,  and  excluding  Indians 
not  taxed,  three  fifths  of  all  other  Persons.]1  The  actual  Enu- 
meration shall  be  made  within  three  Years  after  the  first  Meet- 
ing of  the  Congress  of  the  United  States,  and  within  every, 
subsequent  Term  of  ten  Years,  in  such  Manner  as  they  shall  by 
Law  direct.  The  Number  of  Representatives  shall  not  exceed 
one  for  every  thirty  Thousand,  but  each  State  shall  have  at  Least 
one  Representative;  and  until  such  enumeration  shall  be  made, 
the  State  of  New  Hampshire  shall  be  entitled  to  chuse  three, 
Massachusetts  eight,  Rhode-Island  and  Providence  Plantations 
one,  Connecticut  five,  New- York  six,  New  Jersey  four,  Pennsyl- 
vania eight,  Delaware  one,  Maryland  six,  Virginia  ten,  North 
Carolina  five,  South  Carolina  five,  and  Georgia  three. 

6  When  vacancies  happen  in  the  Representation  from  any 
State,  the  Executive  Authority  thereof  shall  issue  Writs  of  Elec- 
tion to  fill  such  Vacancies. 

7  The  House  of  Representatives  shall  chuse  their  Speaker  and 
other  Officers ;  and  shall  have  the  sole  Power  of  Impeachment. 

8  SECTION.  3.     The  Senate  of  the  United  States  shall  be  com- 
posed of  two  Senators  from  each  State,  [chosen  by  the  Legisla- 
ture thereof,]2  for  six  Years;  and  each  Senator  shall  have  one 
Vote. 

9  Immediately  after  they  shall  be  assembled  in  Consequence  of 
the  first  Election,  they  shall  be  divided  as  equally  as  may  be  into 
three  Classes.    The  Seats  of  the  Senators  of  the  first  Class  shall 
be  vacated  at  the  Expiration  of  the  second  Year,  of  the  second 
Class  at  the  Expiration  of  the  fourth  Year,  and  of  the  third  Class 
at  the  Expiration  of  the  sixth  Year,  so  that  one  third  may  be 
chosen  every  second  Year;  [and  if  Vacancies  happen  by  Resig- 
nation, or  otherwise,  during  the  Recess  of  the  Legislature  of  any 
State,  the  Executive  thereof  may  make  temporary  Appointments 
until  the  next  Meeting  of  the  Legislature,  which  shall  then  fill 
such  Vacancies.]3 

10  No  Person  shall  be  a  Senator  who  shall  not  have  attained  to 
the  Age  of  thirty  Years,  and  been  nine  Years  a  Citizen  of  the 
United  States,  and  who  shall  not,  when  elected,  be  an  inhabitant 
of  that  State  for  which  he  shall  be  chosen. 

11  The  Vice  President  of  the  United  States  shall  be  President 

1  Superseded  by  the  Fourteenth  Amendment. 

2  Superseded  by  the  Seventeenth  Amendment. 
s  Modified  by  the  Seventeenth  Amendment. 


CONSTITUTION  OP  THE  UNITED  STATES.       xiii 

of  the  Senate,  but  shall  have  no  Vote,  unless  they  be  equally 
divided. 

19  The  Senate  shall  chuse  their  other  Officers,  and  also  a  Presi- 
dent pro  tempore,  in  the  Absence  of  the  Vice  President,  or  when 
he  shall  exercise  the  Office  of  President  of  the  United  States. 

13  The  Senate  shall  have  the  sole  Power  to  try  all  Impeach- 
ments.   When  sitting  for  that  Purpose,  they  shall  be  on  Oath  or 
Affirmation.    "When  the  President  of  the  United  States  is  tried, 
the  Chief  Justice  shall  preside :  And  no  Person  shall  be  convicted 
without  the  Concurrence  of  two  thirds  of  the  Members  present. 

14  Judgment  in  Cases  of  Impeachment  shall  not  extend  further 
than  to  removal  from  Office,  and  disqualification  to  hold  and 
enjoy  any  Office  of  honor,  Trust  or  Profit  under  the  United 
States:  but  the  Party  convicted  shall  nevertheless  be  liable  and 
subject  to  Indictment,  Trial,  Judgment  and  Punishment,  accord- 
ing to  Law. 

15  SECTION.  4.     The  Times,  Places  and  Manner  of  holding  Elec- 
tions for  Senators  and  Representatives,  shall  be  prescribed  in 
each  State  by  the  Legislature  thereof ;  but  the  Congress  may  at 
any  time  by  Law  make  or  alter  such  Regulations,  except  as  to 
the  Places  of  chusing  Senators. 

18  The  Congress  shall  assemble  at  least  once  in  every  Year,  and 
such  -Meeting  shall  be  on  the  first  Monday  in  December,  unless 
they  shall  by  Law  appoint  a  different  Day. 

17  SECTION.  5.    Each  House  shall  be  the  Judge  of  the  Elections, 
Returns  and  Qualifications  of  its  own  Members,  and  a  Majority 
of  each  shall  constitute  a  Quorum  to  do  Business ;  but  a  smaller 
Number  may  adjourn  from  day  to  day,  and  may  be  authorized 
to  compel  the  Attendance  of  absent  Members,  in  such  Manner, 
and  under  such  Penalties  as  each  House  may  provide. 

18  Each  House  may  determine  the  Rules  of  its  Proceedings, 
punish  its  Members  for  disorderly  Behaviour,  and,  with  the  Con- 
currence of  two  thirds,  expel  a  Member. 

18  Each  House  shall  keep  a  Journal  of  its  Proceedings,  and 
from  time  to  time  publish  the  same,  excepting  such  Parts  as  Dflay 
in  their  Judgment  require  Secrecy;  and  the  Yeas  and  Nays  of 
the  Members  of  either  House  on  any  question  shall,  at  the  Desire 
of  one  fifth  of  those  Present,  be  entered  on  the  Journal. 

10  Neither  House,  during  the  Session  of  Congress,  shall,  with- 
out the  Consent  of  the  other,  adjourn  for  more  than  three  days, 
nor  to  any  other  Place  than  that  in  which  the  two  Houses  shall 
be  sitting. 

11  SECTION.  6.    The  Senators  and  Representatives  shall  receive 


xiv  CASES  ON  CONSTITUTIONAL  LAW. 

a  Compensation  for  their  Services,  to  be  ascertained  by  Law, 
and  paid  out  of  the  Treasury  of  the  United  States.  They  shall 
in  all  Cases,  except  Treason,  Felony  and  Breach  of  the  Peace, 
be  privileged  from  Arrest  during  their  Attendance  at  the  Ses- 
sion of  their  respective  Houses,  and  in  going  to  and  returning 
from  the  same;  and  for  any  Speech  or  Debate  in  either  House, 
they  shall  not  be  questioned  in  any  other  Place. 

22  No  Senator  or  Representative  shall,  during  the  Time  for 
which  he  was  elected,  be  appointed  to  any  civil  Office  under  the 
Authority  of  the  United  States,  which  shall  have  been  created, 
or  the  Emoluments  whereof  shall  have  been  encreased  during 
such  time;  and  no  Person  holding  any  Office  under  the  United 
States,  shall  be  a  Member  of  either  House  during  his  Continu- 
ance in  Office. 

23  SECTION.  7.    All  Bills  for  raising  Revenue  shall  originate  in 
the  House  of  Representatives;  but  the  Senate  may  propose  or 
concur  with  Amendments  as  on  other  Bills. 

24  Every  Bill  which  shall  have  passed  the  House  of  Representa- 
tives and  the  Senate,  shall,  before  it  become  a  Law,  be  presented 
to  the  President  of  the  United  States ;  If  he  approve  he  shall  sign 
it,  but  if  not  he  shall  return  it,  with  his  Objections  to  that  House 
in  which  it  shall  have  originated,  who  shall  enter  the  Objections 
at  large  on  their  Journal,  and  proceed  to  reconsider  it.    If  after 
such  Reconsideration  two  thirds  of  that  House  shall  agree  «to 
pass  the  Bill,  it  shall  be  sent,  together  with  the  Objections,  to 
the  other  House,  by  which  it  shall  likewise  be  reconsidered,  and 
if  approved  by  two  thirds  of  that  House,  it  shall  become  a  Law. 
But  in  all  such  Cases  the  Votes  of  both  Houses  shall  be  deter- 
mined by  yeas  and  Nays,  and  the  Names  of  the  Persons  voting 
for  and  against  the  Bill  shall  be  entered  on  the  Journal  of  each 
House  respectively.     If  any  Bill  shall  not  be  returned  by  the 
President  within  ten  Days   (Sundays  excepted)   after  it  shall 
have  been  presented  to  him,  the  Same  shall  be  a  Law,  in  like 
Manner  as  if  he  had  signed  it,  unless  the  Congress  by  their  Ad- 
journment prevent  its  Return,  in  which  Case  it  shall  not  be  a 
Law. 

25  Every  Order,  Resolution,  or  Vote  to  which  the  Concurrence 
of  the  Senate  and  House  of  Representatives  may  be  necessary 
(except  on  a  question  of  Adjournment)  shall  be  presented  to  the 
President  of  the  United  States ;  and  before  the  Same  shall  take 
Effect,  shall  be  approved  by  him,  or  being  disapproved  by  him, 
shall  be  repassed  by  two  thirds  of  the  Senate  and  House  of  Rep- 


CONSTITUTION  OF  THE  UNITED  STATES.        xv 

resentatives,  according  to  the  Rules  and  Limitations  prescribed 
in  the  Case  of  a  Bill. 

26  SECTION.  8.  The  Congress  shall  have  Power  To  lay  and 
collect  Taxes,  Duties,  Imposts  and  Excises,  to  pay  the  Debts  and 
Provide  for  the  common  Defence  and  general  Welfare  of  the 
United  States ;  but  all  Duties,  Imposts  and  Excises  shall  be  uni- 
form throughout  the  United  States; 

87  To  borrow  Money  on  the  credit  of  the  United  States ; 

18  To  regulate  Commerce  with  foreign  Nations,  and  among  the 
several  States,  and  with  the  Indian  Tribes ; 

*•  To  establish  an  uniform  Rule  of  Naturalization,  and  uni- 
form Laws  on  the  subject  of  Bankruptcies  throughout  the  United 
States; 

80  To  coin  Money,  regulate  the  Value  thereof,  and  of  foreign 
Coin,  and  fix  the  Standard  of  Weights  ajid  Measures; 

81  To  provide  for  the  Punishment  of  counterfeiting  the  Securi- 
ties and  current  Coin  of  the  United  States; 

82  To  establish  Post  Offices  and  post  Roads ; 

88  To  promote  the  Progress  of  Science  and  useful  Arts,  by 
securing  for  limited  Time  to  Authors  and  Inventors  the  exclu- 
sive Right  to  their  respective  Writings  and  Discoveries ; 

84To  constitute  Tribunals  inferior  to  the  supreme  Court ; 

85  To  define  and  punish  Piracies  and  Felonies  committeed  on 
the  high  Seas,  and  Offences  against  the  Law  of  Nations; 

86  To  declare  War,  grant  Letters  of  Marque  and  Reprisal,  and 
make  Rules  concerning  Captures  on  Land  and  Water; 

87  To  raise  and  support  Armies,  but  no  Appropriation  of 
Money  to  that  Use  shall  be  for  a  longer  Term  than  two  Years ; 

**  To  provide  and  maintain  a  Navy ; 

8*  To  make  Rules  for  the  Government  and  Regulation  of  the 
land  and  naval  Forces; 

40  To  provide  for  calling  forth  the  Militia  to  execute  the  Laws 
of  the  Union,  suppress  Insurrections  and  repel  Invasions ; 

41  To  provide  for  organizing,  arming,  and  disciplining,  the 
Militia,  and  for  governing  such  Pert  of  them  as  may  be  em- 
ployed in  the  Service  of  the  United  States,  reserving  to  the  States 
respectively,  the  Appointment  of  the  Officers,  and  the  Authority 
of  training  the  Militia  according  to  the  discipline  prescribed  by 
Congress ; 

48  To  exercise  exclusive  Legislation  in  all  Cases  whatsoever, 
over  such  District  (not  exceeding  ten  Miles  square)  as  may,  by 
Cession  of  Particular  States,  and  the  Acceptance  of  Congress, 
become  the  Seat  of  the  Government  of  the  United  States,  and  to 


xvi  CASES  ON  CONSTITUTIONAL  LAW. 

exercise  like  Authority  over  all  Places  purchased  by  the  Consent 
of  the  Legislature  of  the  State  in  which  the  Same  shall  be,  for 
the  Erection  of  Forts,  Magazines,  Arsenals,  dock- Yards,  and 
other  needful  Buildings ;  —  And 

43  To  make  all  Laws  which  shall  be  necessary  and  proper  for 
carrying  into  Execution  the  foregoing  Powers,  and  all  other 
Powers  vested  by  this  Constitution  in  the  Government  of  the 
United  States,  or  in  any  Department  or  Officer  thereof. 

44  SECTION.  9.    The  Migration  or  Importation  of  such  Persons 
as  any  of  the  States  now  existing  shall  think  proper  to  admit, 
shall  not  be  prohibited  by  the  Congress  prior  to  the  Year  one 
thousand  eight  hundred  and  eight,  but  a  Tax  or  duty  may  be 
imposed  on  such  Importation,  not  exceeding  ten  dollars  for  each 
Person. 

45  The  Privilege  of  the  "Writ  of  Habeas  Corpus  shall  not  be  sus- 
pended, unless  when  in  Cases  of  Rebellion  or  Invasion  the  public 
Safety  may  require  it. 

46  No  Bill  of  Attainder  or  ex  post  facto  Law  shall  be  passed. 

47  No  .Capitation,  or  other  direct,  Tax  shall  be  laid,  unless  in 
Proportion  to  the  Census  or  Enumeration  herein  before  directed 
to  be  taken.1 

48  NO  rpax  or  Duty  shall  be  laid  on  Articles  exported  from  any 
State. 

49  No  Preference  shall  be  given  by  any  Regulation  of  Com- 
merce or  Revenue  to  the  Ports  of  one  State  over  those  of  another : 
nor  shall  Vessels  bound  to,  or  from,  one  State,  be  obliged  to  enter, 
clear,  or  pay  Duties  in  another. 

50  No  Money  shall  be  drawn  from  the  Treasury,  but  in  Con- 
sequence of  Appropriations  made  by  Law ;  and  a  regular  State- 
ment and  Account  of  the  Receipts  and  Expenditures  of  all  pub- 
lic Money  shall  be  published  from  time  to  time. 

51  No  Title  of  Nobility  shall  be  granted  by  the  United  States : 
And  no  Person  holding  any  Office  of  Profit  or  Trust  under  them, 
shall,  without  the  Consent  of  the  Congress,  accept  of  any  pres- 
ent, Emolument,  Office,  or  Title,  of  any  kind  whatever,  from  any 
King,  Prince,  or  foreign  State. 

52  SECTION.  10.    No  State  shall  enter  into  any  Treaty,  Alliance, 
or  Confederation;  grant  Letters  of  Marque  and  Reprisal;  coin 
Money ;  emit  Bills  of  Credit ;  make  any  Thing  but  gold  and  silver 
Coin  a  Tender  in  Payment  of  Debts ;  pass  any  Bill  of  Attainder, 

i  Modified  by  the  Sixteenth  Amendment. 


CONSTITUTION  OF  THE  UNITED  STATES,      xvii 

ex  post  facto  Law,  or  Law  impairing  the  Obligation  of  Contracts, 
or  grant  any  Title  of  Nobility. 

58  No  State  shall,  without  the  Consent  of  the  Congress,  lay 
any  Imposts  or  Duties  on  Imports  or  Exports,  except  what  may 
be  absolutely  necessary  for  executing  it's  inspection  Laws:  and 
the  net  Produce  of  all  Duties  and  Imposts,  laid  by  any  State  on 
Imports  or  Exports,  shall  be  for  the  Use  of  the  Treasury  of  the 
United  States ;  and  all  such  Laws  shall  be  subject  to  the  Revision 
and  Controul  of  the  Congress. 

54  No  State  shall,  without  the  Consent  of  Congress,  lay  any 
Duty  of  Tonnage,  keep  Troops,  or  Ships  of  War  in  time  of  Peace, 
enter  into  any  Agreement  or  Compact  with  another  State,  or 
with  a  foreign  Power,  or  engage  in  War,  unless  actually  invaded, 
or  in  such  imminent  Danger  as  will  not  admit  of  delay. 

ARTICLE.  II. 

55  SECTION.  1.    The  executive  Power  shall  be  vested  in  a  Presi- 
dent of  the  United  States  of  America.    He  shall  hold  his  Office 
during  the  Term  of  four  Years,  and,  together  with  the  Vice 
President,  chosen  for  the  same  Term,  be  elected,  as  follows 

50  Each  State  shall  appoint,  in  such  Manner  as  the  Legisla- 
ture thereof  may  direct,  a  Number  of  Electors,  equal  to  the  whole 
Number  of  Senators  and  Representatives  to  which  the  State  may 
be  entitled  in  the  Congress:  but  no  Senator  or  Representative, 
or  Person  holding  an  Office  of  Trust  or  Profit  under  the  United 
States,  shall  be  appointed  an  Elector. 

57  [The  Electors  shall  meet  in  their  respective  States,  and  vote 
by  Ballot  for  two  Persons,  of  whom  one  at  least  shall  not  be  an 
Inhabitant  of  the  same  State  with  themselves.  And  they  shall 
make  a  List  of  all  the  Persons  voted  for,  and  of  the  Number  of 
Votes  for  each ;  which  List  they  shall  sign  and  certify,  and  trans- 
mit sealed  to  the  Seat  of  the  Government  of  the  United  States, 
directed  to  the  President  of  the  Senate.  The  President  of  the 
Senate  shall,  in  the  Presence  of  the  Senate  and  House  of  Repre- 
sentatives, open  all  the  Certificates,  and  the  Votes  shall  then  be 
counted.  The  Person  having  the  greatest  Number  of  Votes  shall 
be  the  President,  if  such  Number  be  a  Majority  of  the  whole 
Number  of  Electors  appointed;  and  if  there  be  more  than  one 
who  have  such  Majority,  and  have  an  equal  Number  of  Votes, 
thru  the  House  of  Representatives  shall  immediately  chuse  by 
Ballot  one  of  them  for  President ;  and  if  no  Person  have  a  Major- 
ity, then  from  the  five  highest  on  the  List  the  said  House  shall 


xviii  CASES  ON  CONSTITUTIONAL  LAW. 

» 

in  like  Manner  chuse  the  President.  But  in  chusing  the  Presi- 
dent, the  Votes  shall  be  taken  by  States,  the  Representation  from 
each  State  having  one  Vote;  A  quorum  for  this  Purpose  shall 
consist  of  a  Member  or  Members  from  two  thirds  of  the  States, 
and  a  Majority  of  all  the  States  shall  be  necessary  to  a  Choice. 
In  every  Case,  after  the  Choice  of  the  President,  the  Person  hav- 
ing the  greatest  Number  of  Votes  of  the  Electors  shall  be  the 
Vice  President.  But  if  there  should  remain  two  or  more  who 
have  equal  Votes,  the  Senate  shall  chuse  from  them  by  Ballot 
the  Vice  President.]  1 

68  The  Congress  may  determine  the  Time  of  chusing  the  Elect- 
ors, and  the  Day  on  which  they  shall  give  their  Votes;  which 
Day  shall  be  the  same  throughout  the  United  States. 

59  No  Person  except  a  natural  born  Citizen,  or  a  Citizen  of  the 
United  States,  at  the  time  of  the  Adoption  of  this  Constitution, 
shall  be  eligible  to  the  Office  of  President ;  neither  shall  any  Per- 
son be  eligible  to  that  Office  who  shall  not  have  attained  to  the 
Age  of  thirty  five  Years,  and  been  fourteen  Years  a  Resident 
within  the  United  States. 

60  In  Case  of  the  Removal  of  the  President  from  Office,  or  of 
his  Death,  Resignation,  or  Inability  to  discharge  the  Powers  and 
Duties  of  the  said  Office,  the  Same  shall  devolve  on  the  Vice 
President,  and  the  Congress  may  by  Law  provide  for  the  Case 
of  Removal,  Death,  Resignation  or  Inability,  both  of  the  Presi- 
dent and  Vice  President,  declaring  what  Officer  shall  then  act  as 
President,  and  such  Officer  shall  act  accordingly,  until  the  Dis- 
ability be  removed,  or  a  President  shall  be  elected. 

61  The  President  shall,  at  stated  Times,  receive  for  his  Serv- 
ices, a  Compensation,  which  shall  neither  be  encreased  nor  dimin- 
ished during  the  Period  for  which  he  shall  have  been  elected, 
and  he  shall  not  receive  within  that  Period  any  other  Emolument 
from  the  United  States,  or  any  of  them. 

62  Before  he  enter  on  the  Execution  of  his  Office,  he  shall  take 
the  following  Oath  or  Affirmation :  —    "  I  do  solemnly  swear  (or 
affirm)  that  I  will  faithfully  execute  the  Office  of  President  of 
the  United  States,  and  will  to  the  best  of  my  Ability,  preserve, 
protect  and  defend  the  Constitution  of  the  United  States." 

63  SECTION.  2.    The  President  shall  be  Commander  in  Chief  of 
the  Army  and  Navy  of  the  United  States,  and  of  the  Militia  of 
the  several  States,  when  called  into  the  actual  Service  of  the 
United  States;  he  may  require  the  Opinion,  in  writing,  of  the 

*  Superseded  by  the  Twelfth  Amendment. 


CONSTITUTION  OF  THE  UNITED  STATES.       xix 

principal  Officer  in  each  of  the  executive  Departments,  upon  any 
Subject  relating  to  the  Duties  of  their  respective  Offices,  and  he 
shall  have  Power  to  grant  Reprieves  and  Pardons  for  Offences 
against  the  United  States,  except  in  Cases  of  Impeachment. 

84  He  shall  have  Power,  by  and  with  the  Advice  and  Consent 
of  the  Senate,  to  make  Treaties,  provided  two  thirds  of  the  Sena- 
tors present  concur ;  and  he  shall  nominate,  and  by  and  with  the 
Advice  and  Consent  of  the  Senate,  shall  appoint  Ambassadors, 
other  public  Ministers  and  Consuls,  Judges  of  the  supreme  Court, 
and  all  other  Officers  of  the  United  States,  whose  Appointments 
are  not  herein  otherwise  provided  for,  and  which  shall  be  estab- 
lished by  Law :  but  the  Congress  may  by  Law  vest  the  Appoint- 
ment of  such  inferior  Officers,  as  they  think  proper,  in  the  Presi- 
dent alone,  in  the  Courts  of  Law,  or  in  the  Heads  of  Depart- 
ments. 

85  The  President  shall  have  Power  to  fill  up  all  Vacancies  that 
may  happen  during  the  Recess  of  the  Senate,  by  granting  Com- 
missions which  shall  expire  at  the  End  of  their  next  Session. 

86  SECTION.  3.    He  shall  from  time  to  time  give  to  the  Congress 
Information  of  the  State  of  the  Union,  and  recommend  to  their 
consideration  such  Measures  as  he  shall  judge  necessary  and  ex- 
pedient;  he  may,   on   extraordinary   Occasions,   convene  both 
Houses,  or  either  of  them,  and  in  Case  of  Disagreement  between 
them,  with  Respect  to  the  Time  of  Adjournment,  he  may  adjourn 
them  to  such  Time  as  he  shall  think  proper;  he  shall  receive 
Ambassadors  and  other  public  Ministers ;  he  shall  take  Care  that 
the  Laws  be  faithfully  executed,  and  shall  Commission  all  the 
Officers  of  the  United  States. 

87  SECTION.  4.     The  President,  Vice  President  and  all  civil 
Officers  of  the  United  States,  shall  be  removed  from  Office  on 
Impeachment  for,  and  conviction  of,  Treason,  Bribery,  or  other 
high  Crimes  and  Misdemeanors. 

ARTICLE.  III. 

68  SECTION.  1.  The  judicial  Power  of  the  United  States,  shall 
be  vested  in  one  supreme  Court,  and  in  such  inferior  Courts  as 
the  Congress  may  from  time  to  time  ordain  and  establish.  The 
Judges,  both  of  the  supreme  and  inferior  Courts,  shall  hold  their 
Offices  during  good  Behaviour,  and  shall,  at  stated  Times,  receive 
for  their  Services,  a  Compensation,  which  shall  not  be  dimin- 
ished during  their  Continuance  in  Office. 

89  SECTION.  2.    The  judicial  Power  shall  extend  to  all  Cases,  in 


xx  CASES  ON  CONSTITUTIONAL  LAW. 

Law  and  Equity,  arising  under  this  Constitution,  the  Laws  of 
the  United  States-,  and  Treaties  made,  or  which  shall  be  made, 
under  their  Authority;  —  to  all  Cases  affecting  Ambassadors, 
other  public  Ministers  and  Consuls ;  —  to  all  Cases  of  admiralty 
and  maritime  Jurisdiction;  —  to  Controversies  to  which  the 
United  States  shall  be  a  Party ;  — :  to  Controversies  between  two 
or  more  States;  —  between  a  State  and  Citizens  of  another 
State ; 1  —  between  Citizens  of  different  States,  —  between  Citi- 
zens of  the  same  State  claiming  Lands  under  Grants  of  different 
States,  and  between  a  State,  or  the  Citizens  thereof,  and  foreign 
States,  Citizens  or  Subjects. 

70  In  all  Cases  affecting  Ambassadors,  other  public  Ministers 
and  Consuls,  and  those  in  which  a  State  shall  be  Party,  the 
supreme  Court  shall  have  original  Jurisdiction.    In  all  the  other 
Cases  before  mentioned,  the  supreme  Court  shall  have  appellate 
Jurisdiction,  both  as  to  Law  and  Fact,  with  such  Exceptions, 
and  under  such  Regulations  as  the  Congress  shall  make. 

71  The  Trial  of  all  Crimes,  except  in  Cases  of  Impeachment, 
shall  be  by  Jury ;  and  such  Trial  shall  be  held  in  the  State  where 
the  said  Crimes  shall  have  been  committed;  but  when  not  com- 
mitted within  any  State,  the  Trial  shall  be  at  such  Place  or  Places 
as  the  Congress  may  by  Law  have  directed. 

72  SECTION.  3.     Treason  against  the  United  States,  shall  con- 
sist only  in  levying  War  against  them,  or  in  adhering  to  their 
Enemies,  giving  them  Aid  and  Comfort.    No  Person  shall  be  con- 
victed of  Treason  unless  on  the  Testimony  of  two  Witnesses  to 
the  same  overt  Act,  or  on  Confession  in  open  Court. 

73  The  Congress  shall  have  Power  to  declare  the  Punishment 
of  Treason,  but  no  Attainder  of  Treason  shall  work  Corruption 
of  Blood,  or  Forfeiture  except  during  the  Life  of  the  Person 
attainted. 

ARTICLE.  IV. 

74  SECTION.  1.    Full  Faith  and  Credit  shall  be  given  in  each 
State  to  the  public  Acts,  Records,  and  judicial  Proceedings  of 
every  other  State.    And  the  Congress  may  by  general  Laws  pre- 
scribe the  Manner  in  which  such  Acts,  Records  and  Proceedings 
shall  be  proved,  and  the  Effect  thereof. 

75  SECTION.  2.    The  Citizens  of  each  State  shall  be  entitled  to 
all  Privileges  and  Immunities  of  Citizens  in  the  several  States. 

76  A  Person  charged  in  any  State  with  Treason,  Felony,  or 

1  Modified  by  the  Eleventh  Amendment. 


CONSTITUTION  OF  THE  UNITED  STATES.       xxi 

other  Crime,  who  shall  flee  from  Justice,  and  be  found  in  another 
State,  shall  on  Demand  of  the  executive  Authority  of  the  State 
from  which  he  fled,  be  delivered  up,  to  be  removed  to  the  State 
having  Jurisdiction  of  the  Crime. 

77  No  Person  held  to  Service  or  Labour  in  one  State,  under  the 
Laws  thereof,  escaping  into  another,  shall,  in  Consequence  of  any 
Law  or  Regulation  therein,  be  discharged  from  such  Service  or 
Labour,  but  shall  be  delivered  up  on  Claim  of  the  Party  to  whom 
such  Service  or  Labour  may  be  due. 

78  SECTION.  3.    New  States  may  be  admitted  by  the  Congress 
into  this  Union;  but  no  new  State  shall  be  formed  or  erected 
within  the  Jurisdiction  of  any  other  State;  nor  any  State  be 
formed  by  the  Junction  of  two  or  more  States,  or  Parts  of  States, 
without  the  Consent  of  the  Legislatures  of  the  States  concerned 
as  well  as  of  the  Congress. 

79  The  Congress  shall  have  Power  to  dispose  of  and  make  all 
needful  Rules  and  Regulations  respecting  the  Territory  or  other 
Property  belonging  to  the  United  States;  and  nothing  in  this 
Constitution  shall  be  so  construed  as  to  Prejudice  any  Claims  of 
the  United  States,  or  of  any  particular  State. 

80  SECTION.  4.     The  United  States  shall  guarantee  to  every 
State  in  this  Union  a  Republican  Form  of  Government,  and  shall 
protect  each  of  them  against  Invasion;  and  on  Application  of 
the  Legislature,  or  of  the  Executive  (when  the  Legislature  can- 
not be  convened)  against  domestic  Violence. 

ARTICLE.  V. 

81  The  Congress,  whenever  two  thirds  of  both  Houses  shall 
deem  it  necessary,  shall  propose  Amendments  to  this  Constitu- 
tion, or,  on  the  Application  of  the  Legislatures  of  two  thirds  of 
the  several  States,  shall  call  a  Convention  for  proposing  Amend- 
ments, which,  in  either  Case,  shall  be  valid  to  all  Intents  and 
Purposes,  as  Part  of  this  Constitution,  when  ratified  by  the  Leg- 
islatures of  three  fourths  of  the  several  States,  or  by  Conventions 
in  three  fourths  thereof,  as  the  one  or  the  other  Mode  of  Ratifi- 
cation may  be  proposed  by  the  Congress;  Provided  that  no 
Amendment  which  may  be  made  prior  to  the  Year  One  thousand 
eight  hundred  and  eight  shall  in  any  Manner  affect  the  first  and 
fourth  Clauses  in  the  Ninth  Section  of  the  first  Article ;  and  that 
no  State,  without  its  Consent,  shall  be  deprived  of  it's  equal  Suf- 
frage in  the  Senate. 


xxii  CASES  ON  CONSTITUTIONAL  LAW. 

ARTICLE.  VI. 

82  All  Debts  contracted  and  Engagements  entered  into,  before 
the  Adoption  of  this  Constitution,  shall  be  as  valid  against  the 
United  States  under  this  Constitution,  as  under  the  Confedera- 
tion. 

83  This  Constitution,  and  the  Laws  of  the  United  States  which 
shall  be  made  in  Pursuance  thereof;  and  all  Treaties  made,  or 
which  shall  be  made,  under  the  Authority  of  the  United  States, 
shall  be  the  supreme  Law  of  the  Land ;  and  the  Judges  in  every 
State  shall  be  bound  thereby,  any  Thing  in  the  Constitution  or 
Laws  of  any  State  to  the  Contrary  notwithstanding. 

84  The  Senators  and  Representatives  before  mentioned,  and  the 
Members  of  the  several  State  Legislatures,  and  all  executive  and 
judicial  Officers,  both  of  the  United  States  and  of  the  several 
States,  shall  be  bound  by  Oath  or  Affirmation,  to  support  this 
Constitution;  but  no  religious  Test  shall  ever  be  required  as  a 
Qualification  to  any  Office  or  public  Trust  under  the  United 
States. 

ARTICLE.  VII. 

85  The  Ratification  of  the  Conventions  of  nine  States,  shall  be 
sufficient  for  the  Establishment  of  this  Constitution  between  the 
States  so  ratifying  the  Same. 

86  DONE  in  Convention  by  the  Unanimous  Consent  of  the  States 
present  the  Seventeenth  Day  of  September  in  the  Year  of  our 
Lord  one  thousand  seven  hundred  and  Eighty  seven  and  of  the 
Independence  of  the  United  States  of  America  the  Twelfth  IN 
WITNESS  whereof  We  have  hereunto  subscribed  our  Names, 

Go.  WASHINGTON— Presidt. 

and  deputy  from  Virginia. 
Attest  WILLIAM  JACKSON  Secretary. 


New  Hampshire . .  - 


John  Langdon 


Nicholas  Oilman 

,,        ,  f  Nathaniel  Gorham 

Massachusetts J  „   ,     _. 

1  Rufus  King 

Connecticut jWm:  Saml.  Johnson 

[Roger  Sherman 

New  York Alexander  Hamilton 

Wil :  Livingston 


New  Jersey 


David  Brearley. 
Win.  Paterson. 
Jona:  Dayton 


CONSTITUTION  OF  THE  UNITED  STATES,     xxiii 


Pennsylvania 


Delaware 


Maryland 

Virginia 

North  Carolina. 
South  Carolina. 
Georgia 


B  Franklin 
Thomas  Mifflin 
Robt  Morris 
Geo.  Clymer 
Thos.  Fitzsimons 
Jared  Ingersoll 
James  Wilson 
Gouv  Morris 
Geo:  Read 

Gunning  Bedford  jun 
John  Dickinson 
Richard  Bassett 
Jaco :  Broom 

James  McHenry 

Dan  of  St  Thos.  Jenifer 

Danl.  Carroll. 

John  Blair 

James  Madison  Jr. 

Wm.  Blount 

Richd.  Dobbs  Spaight. 

Hu  Williamson 

J.  Rutledge 

Charles  Cotesworth  Pinckney 

Charles  Pinckney 

Pierce  Butler. 

William  Few 
Abr  Baldwin 


Nor*. — On  September  28,  1787,  Congress  directed  that  the  Constitution, 
"with  the  resolutions  and  letter  accompanying  the  same,  be  transmitted  to 
the  several  Legislatures  in  order  to  be  submitted  to  a  Convention  of  Dele- 
gates chosen  in  each  State  by  the  people  thereof,  in  conformity  to  the 
resolves  of  the  Convention  made  and  provided  in  that  case."  Journal  of 
Congrett,  XII,  166.  When  the  new  government  went  into  operation,  the 
Constitution  had  been  ratified  by  only  eleven  States,  but  ultimately  it  was 
ratified  by  all  of  them  in  the  following  order :  Delaware,  December  7,  1787 ; 
Pennsylvania,  December  12,  1787;  New  Jersey,  December  18,1787;  Georgia, 
January  2,  1788;  Connecticut,  January  9,  1788;  Massachusetts,  February  6, 
1788;  Maryland,  April  28,  1788;  South  Carolina,  May  23,  1788;  New  Hamp- 
shire, June  21,  1788;  Virginia,  June  26,  1788;  New  York,  July  26,  1788; 
North  Carolina,  November  '21,  1789;  Rhode  Island,  May  29,  1790. 


xxiv  CASES  ON  CONSTITUTIONAL  LAW. 

ARTICLES  in  addition  to  and  Amendment  of  the  Constitu- 
tion of  the  United  States  of  America,  proposed  by  Congress,  and 
ratified  by  the  Legislatures  of  the  several  States,  pursuant  to  the 
fifth  Article  of  the  original  Constitution. 

[ARTICLE  I.] 

87  Congress  shall  make  no  law  respecting  an  establishment  of 
religion,  or  prohibiting  the  free  exercise  thereof;  or  abridging 
the  freedom  of  speech,  or  of  the  press ;  or  the  right  of  the  people 
peaceably  to  assemble,  and  to  petition  the  Government  for  a  re- 
dress of  grievances. 

[ARTICLE  II.] 

88  A  well  regulated  Militia,  being  necessary  to  the  security  of 
a  free  State,  the  right  of  the  people  to  keep  and  bear  Arms,  shall 
not  be  infringed. 

[ARTICLE  III.] 

89  No  Soldier  shall,  in  time  of  peace  be  quartered  in  any  house, 
without  the  consent  of  the  Owner,  nor  in  time  of  war,  but  in  a 
manner  to  be  prescribed  by  law. 

[ARTICLE  IV.] 

90  The  right  of  the  people  to  be  secure  in  their  persons,  houses, 
papers,  and  effects,  against  unreasonable  searches  and  seizures, 
shall  not  be  violated,  and  no  Warrants  shall  issue,  but  upon 
probable  cause,  supported  by  Oath  or  affirmation,  and  particu- 
larly describing  the  place  to  be  searched,  and  the  persons  or 
things  to  be  seized. 

[ARTICLE  V.] 

91  No  person  shall  be  held  to  answer  for  a  capital,  or  other- 
wise infamous  crime,  unless  on  a  presentment  or  indictment  of 
a  Grand  Jury,  except  in  cases  arising  in  the  land  or  naval  forces, 
or  in  the  Militia,  when  in  actual  service  in  time  of  War  or  pub- 
lic danger;  nor  shall  any  person  be  subject  for  the  same  offence 
to  be  twice  put  in  jeopardy  of  life  or  limb ;  nor  shall  be  compelled 
in  any  criminal  case  to  be  a  witness  against  himself,  nor  be  de- 


CONSTITUTION  OP  THE  UNITED  STATES.      xxv 

prived  of  life,  liberty,  or  property,  without  due  process  of  law ; 
nor  shall  private  property  be  taken  for  public  use,  without  just 
compensation. 

[ARTICLE  VI.] 

92  In  all  criminal  prosecutions  the  accused  shall  enjoy  the  right 
to  a  speedy  and  public  trial,  by  an  impartial  jury  of  the  State 
and  district  wherein  the  crime  shall  have  been  committed,  which 
district  shall  have  been  previously  ascertained  by  law,  and  to  be 
informed  of  the  nature  and  cause  of  the  accusation;  to  be  con- 
fronted with  the  witnesses  against  him;  to  have  compulsory 
process  for  obtaining  witnesses  in  his  favor,  and  to  have  the 
Assistance  of  Counsel  for  his  defence. 

[ARTICLE  VII.] 

93  In  suits  at  common  law,  where  the  value  in  controversy  shall 
exceed  twenty  dollars,  the  right  of  trial  by  jury  shall  be  pre- 
served, and  no  fact  tried  by  a  jury  shall  be  otherwise  re-exam- 
ined in  any  Court  of  the  United  States,  than  according  to  the 
rules  of  the  common  law. 

[ARTICLE  VIIJ.] 

94  Excessive  bail  shall  not  be  required,  nor  excessive  fines  im- 
posed, nor  cruel  and  unusual  punishments  inflicted. 

[ARTICLE  IX.] 

95  The  enumeration  in  the  Constitution,  of  certain  rights,  shall 
not  be  construed  to  deny  or  disparage  others  retained  by  the 
people. 

[ARTICLE  X.] 

96  The  powers  not  delegated  to  the  United  States  by  the  Con- 
stitution, nor  prohibited  by  it  to  the  States,  are  reserved  to  the 
States  respectively,  or  to  the  people.1 

[ARTICLE  XL] 

97  The  Judicial  power  of  the  United  States  shall  not  be  con- 
strued to  extend  to  any  suit  in  law  or  equity,  commenced  or 

»  The  first  ten  Amendments  were  proposed  by  Congress  September  25, 
1789,  and  were  ratified  by  the  necessary  number  of  States  December  15,  1791. 


XXVI 


CASES  ON  CONSTITUTIONAL  LAW. 


prosecuted  against  one  of  the  United  States  by  Citizens  of  an- 
other State,  or  by  Citizens  or  Subjects  of  any  Foreign  State.1 

[ARTICLE  XII.] 

98  The  Electors  shall  meet  in  their  respective  states,  and  vote 
by  ballot  for  President  and  Vice-President,  one  of  whom,  at  least, 
shall  not  be  an  inhabitant  of  the  same  state  with  themselves; 
they  shall  name  in  their  ballots  the  person  voted  for  as  President, 
and  in  distinct  ballots  the  person  voted  for  as  Vice-President, 
and  they  shall  make  distinct  lists  of  all  persons  voted  for  as 
President,  and  of  all  persons  voted  for  as  Vice-President,  and  of 
the  number  of  votes  for  each,  which  lists  they  shall  sign  and 
certify,  and  transmit  sealed  to  the  seat  of  the  government  of  the 
United  States,  directed  to  the  President  of  the  Senate ;  —  The 
President  of  the  Senate  shall,  in  the  presence  of  the  Senate  and 
House  of  Representatives,  open  all  the  certificates  and  the  votes 
shall  then  be  counted ;  —  The  person  having  the  greatest  number 
of  votes  for  President,  shall  be  the  President,  if  such  number  be 
a  majority  of  the  whole  number  of  Electors  appointed;  and  if 
no  person  have  such  majority,  then  from  the  persons  having  the 
highest  numbers  not  exceeding  three  on  the  list  of  those  voted 
for  as  President,  the  House  of  Representatives  shall  choose  imme- 
diately, by  ballot,  the  President.  But  in  choosing  the  President, 
the  votes  shall  be  taken  by  states,  the  representation  from  each 
state  having  one  vote;  a  quorum  for  this  purpose  shall  consist 
of  a  member  or  members  from  two-thirds  of  the  states,  and  a 
majority  of  all  the  states -shall  be  necessary  to  a  choice.  And  if 
the  House  of  Representatives  shall  not  choose  a  President  when- 
ever the  right  of  choice  shall  devolve  upon  them,  before  the 
fourth  day  of  March  next  following,  then  the  Vice-President 
shall  act  as  President,  as  in  the  case  of  the  death  or  other  con- 
stitutional disability  of  the  President.  —  The  person  having  the 
greatest  number  of  votes  as  Vice-President,  shall  be  the  Vice- 
President,  if  such  number  be  a  majority  of  the  whole  number  of 
Electors  appointed,  and  if  no  person  have  a  majority,  then  from 
the  two  highest  numbers  on  the  list,  the  Senate  shall  choose  the 
Vice-President;  a  quorum  for  the  purpose  shall  consist  of  two- 
thirds  of  the  whole  number  of  Senators,  and  a  majority  of  the 

i  The  Eleventh  Amendment  was  proposed  by  Congress  March  4,  1794, 
and  was  ratified  by  the  necessary  number  of  States  February  7,  1795.  In  a 
message  to  Congress  on  January  8,  1798,  President  Adams  announced  that 
the  Amendment  might  be  regarded  as  a  part  of  the  Constitution. 


CONSTITUTION  OF  THE  UNITED  STATES,    xxvii 

whole  number  shall  be  necessary  to  a  choice.  But  no  person  con- 
stitutionally ineligible  to  the  office  of  President  shall  be  eligible 
to  that  of  Vice-President  of  the  United  States.1 

ABTICLE  XIII. 

••  SECTION  1.  Neither  slavery  nor  involuntary  servitude,  ex- 
cept as  a  punishment  for  crime  whereof  the  party  shall  have  been 
duly  convicted,  shall  exist  within  the  United  States,  or  any  place 
subject  to  their  jurisdiction.  SECTION  2.  Congress  shall  have 
power  to  enforce  this  article  by  appropriate  legislation.2 

ARTICLE  XIV. 

100  SECTION  1.    All  persons  born  or  naturalized  in  the  United 
States,  and  subject  to  the  jurisdiction  thereof,  are  citizens  of  the 
United  States  and  of  the  State  wherein  they  reside.    No  State 
shall  make  or  enforce  any  law  which  shall  abridge  the  privileges 
or  immunities  of  citizens  of  the  United  States;  nor  shall  any 
State  deprive  any  person  of  life,  liberty,  or  property,  without 
due  process  of  law ;  nor  deny  to  any  person  within  its  jurisdic- 
tion the  equal  protection  of  the  laws. 

101  SECTION  2.     Representatives  shall  be  apportioned  among 
the  several  States  according  to  their  respective  numbers,  count- 
ing the  whole  number  of  persons  in  each  State,  excluding  Indians 
not  taxed.    But  when  the  right  to  vote  at  any  election  for  the 
choice  of  electors  for  President  and  Vice-President  of  the  United 
States,  Representatives  in  Congress,  the  Executive  and  Judicial 
officers  of  a  State,  or  the  members  of  the  Legislature  thereof,  is 
denied  to  any  of  the  male  inhabitants  of  such  State,  being 
twenty-one  years  of  age,  and  citizens  of  the  United  States,  or 
in  any  way  abridged,  except  for  participation  in  rebellion,  or 
other  crime,  the  basis  of  representation  therein  shall  be  reduced 
in  the  proportion  which  the  number  of  such  male  citizens  shall 
bear  to  the  whole  number  of  male  citizens  twenty-one  years  of 
age  in  such  State. 

102  SECTION  3.    No  person  shall  be  a  Senator  or  Representative 
in  Congress,  or  elector  of  President  and  Vice  President,  or  hold 
any  office,  civil  or  military,  under  the  United  States,  or  under 

»  The  Twelfth  Amendment  was  proposed  bj  Congress  December  8,  1803, 
and  declared  in  force  by  the  Secretary  of  State  September  25,  1804. 

*  The  Thirteenth  Amendment  wag  proposed  by  Congress  January  31,  1865, 
and  declared  in  force  by  the  Secretary  of  State  December  18,  1865. 


xxviii         CASES  ON  CONSTITUTIONAL  LAW. 

any  State,  who,  having  previously  taken  an  oath,  as  a  member 
of  Congress,  or  as  an  officer  of  the  United  States,  or  as  a  member 
of  any  State  legislature,  or  as  an  executive  or  judicial  officer  of 
any  State,  to  support  the  Constitution  of  the  United  States,  shall 
have  engaged  in  insurrection  or  rebellion  against  the  same,  or 
given  aid  or  comfort  to  the  enemies  thereof.  But  Congress  may 
by  a  vote  of  two-thirds  of  each  House,  remove  such  disability. 

103  SECTION  4.    The  validity  of  the  public  debt  of  the  United 
States,  authorized  by  law,  including  debts  incurred  for  payment 
of  pensions  and  bounties  for  services  in  suppressing  insurrection 
or  rebellion,  shall  not  be  questioned.     But  neither  the  United 
States  nor  any  State  shall  assume  or  pay  any  debt  or  obligation 
incurred  in  aid  of  insurrection  or  rebellion  against  the  United 
States,  or  any  claim  for  the  loss  or  emancipation  of  any  slave ; 
but  all  such  debts,  obligations  and  claims  shall  be  held  illegal 
and  void. 

104  SECTION  5.    The  Congress  shall  the  power  to  enforce,  by 
appropriate  legislation,  the  provisions  of  this  article.1 

ARTICLE  XV. 

105  SECTION  1.    The  right  of  citizens  of  the  United  States  to 
vote  shall  not  be  denied  or  abridged  by  the  United  States  or  by 
any  State  on  account  of  race,  color,  or  previous  condition  of 
servitude.  — 

106  SECTION  2.    The  Congress  shall  have  power  to  enforce  this 
article  by  appropriate  legislation.2  — 

ARTICLE  XVI. 

107  The  Congress  shall  have  power  to  lay  and  collect  taxes  on 
incomes,  from  whatever  source  derived,  without  apportionment 
among  the  several  States,  and  without  regard  to  any  census  or 
enumeration.3 

[ARTICLE  XVII.] 

IDS  Tne  Senate  of  the  United  States  shall  be  composed  of  two 
Senators  from  each  State,  elected  by  the  people  thereof,  for  six 

1  The  Fourteenth  Amendment  was  proposed  by  Congress  June  13,  1866, 
and  was  declared  in  force  by  the  Secretary  of  State  July  28,  1868. 

2  The  Fifteenth  Amendment  was  proposed  by  Congress  February  26,  1869, 
and  was  declared  in  force  by  the  Secretary  of  State,  March  30,  1870. 

8  The  Sixteenth  Amendment  was  proposed  by  Congress  July  12,  1909, 
and  was  declared  in  force  by  the  Secretary  of  State  February  25,  1913. 


CONSTITUTION  OF  THE  UNITED  STATES,     xxix 

years;  and  each  Senator  shall  have  one  vote.  The  electors  in 
each  State  shall  have  the  qualifications  requisite  for  electors  of 
the  most  numerous  branch  of  the  State  legislatures. 

109  When  vacancies  happen  in  the  representation  of  any  State 
in  the  Senate,  the  executive  authority  of  such  State  shall  issue 
writs  of  election  to  fill  such  vacancies :  Provided,  That  the  legis- 
lature of  any  State  may  empower  the  executive  thereof  to  make 
temporary  appointments  until  the  people  fill  the  vacancies  by 
••1,-rtion  as  the  legislature  may  direct. 

110  This  amendment  shall  not  be  so  construed  as  to  affect  the 
»•!••(•  t  ion  or  term  of  any  Senator  chosen  before  it  becomes  valid 
as  part  of  the  Constitution.1 

1  The  Seventeenth  Amendment  was  proposed  by  Congress  May  13,  1912, 
and  was  declared  in  force  by  the  Secretary  of  State  May  31,  1913. 


Leading  Cases 

on 
Constitutional  Law 


CHAPTER  I. 

THE  AMERICAN  SYSTEM  OF  GOVERNMENT. 
SECTION  1.    THE  SUPREME  LAW  OP  THE  LAND. 

This  Constitution,  and  the  laws  of  the  United  States  which  shall 
be  made  in  pursuance  thereof,  and  all  treaties  made  or  which  shall 
be  made,  under  the  authority  of  the  United  States,  shall  be  the 
supreme  law  of  the  land;  and  the  judges  in  every  State  shall  be 
bound  thereby,  anything  in  the  constitution  or  laws  of  any  State 
to  the  contrary  notwithstanding. 

Constitution  of  the  United  State*,  Art.  VI. 

MARBURY  v.  MADISON. 

SUPREME  COURT  or  THE  UNITED  STATES.    1803. 
1  Cranch.  137;  2  Lawyers'  Ed.  60. 

[Near  the  end  of  his  term  of  office  President  Adams  nominated 
William  M anbury  to  the  office  of  justice  of  the  peace  in  the  Dis- 
trict of  Columbia,  The  nomination  was  confirmed  by  the  Senate, 
the  commission  was  signed  by  the  President,  and  the  great  seal 
of  the  United  States  was  affixed  by  the  Secretary  of  State.  On 
the  expiration  of  Adams'  term  of  office,  Marbury  applied  to 
James  Madison,  Secretary  of  State  under  Jefferson,  for  the  de- 
livery of  his  commission.  Jefferson  held  that  the  appointment 
was  not  complete  until  the  commission  had  been  delivered,  and 
directed  Madison-  to  withhold  it.  Marbury  and  several  others 
similarly  circumstanced  then  moved  the  court  for  a  rule  to  James 
Madison  to  show  cause  why  a  writ  of  mandamus  should  not  issue 
ordering  him  to  deliver  the  commission.  No  cause  having  been 
shown  there  was  a  motion  for  a  writ  of  mandamus.] 

K.C.L-1 


2  CASES  ON  CONSTITUTIONAL  LAW. 

MARSHALL,  C.  J.    .    .    .    The  first  object  of  inquiry  is, 

1st.  Has  the  applicant  a  right  to  the  commission  he  demands  ? 
.  .  .  [The  court  finds  that  as  Marbury's  appointment  was 
complete  he  has  a  right  to  the  commission.] 

This  brings  us  to  the  second  inquiry,  which  is, 

2dly.  If  he  has  a  right,  and  that  right  has  been  violated,  do 
the  laws  of  his  country  afford  him  a  remedy?  .  .  .  [The 
court  finds  that  they  do.] 

It  remains  to  be  inquired  whether, 

3dly.  He  is  entitled  to  the  remedy  for  which  he  applies.  This 
depends  on, 

1st.    The  nature  of  the  writ  applied  for;  and, 

2dly.    The  power  of  this  court. 

1st.  The  nature  of  the  writ.  .  .  .  This,  then,  is  a  plain 
case  for  a  mandamus,  either  to  deliver  the  commission,  or  a  copy 
of  it  from  the  record ;  and  it  only  remains  to  be  inquired, 

Whether  it  can  issue  from  this  court. 

The  act  to  establish  the  judicial  courts  of  the  United  States 
authorizes  the  supreme  court  "to  issue  writs  of  mandamus,  in 
cases  warranted  by  the  principles  and  usages  of  law,  to  any  courts 
appointed,  or  persons  holding  office,  under  the  authority  of  the 
United  States."  .  .  .  The  constitution  vests  the  whole  judi- 
cial power  of  the  United  States  in  one  supreme  court,  and  such 
inferior  courts  as  congress  shall,  from  time  to  time,  ordain  and 
establish.  ...  In  the  distribution  of  this  power  it  is  declared 
that  "the  supreme  court  shall  have  original  jurisdiction  in  all 
cases  affecting  ambassadors,  other  public  ministers  and  consuls, 
and  those  in  which  a  State  shall  be  a  party.  In  all  other  cases, 
the  supreme  court  shall  have  appellate  jurisdiction."  .  .  . 
If  it  had  been  intended  to  leave  it  in  the  discretion  of  the  legis- 
lature to  apportion  the  judicial  power  between  the  supreme  and 
inferior  courts  according  to  the  will  of  that  body,  it  would  cer- 
tainly have  been  useless  to  have  proceeded  further  than  to  have 
defined  the  judicial  power,  and  the  tribunals  in  which  it  should 
be  vested.  The  subsequent  part  of  the  section  is  mere  surplusage, 
is  entirely  without  meaning,  if  such  is  to  be  the  construction. 
.  .  .  To  enable  this  court,  then,  to  issue  a  mandamus,  it  must 
be  shown  to  be  an  exercise  of  appellate  jurisdiction,  or  to  be 
necessary  to  enable  them  to  exercise  appellate  jurisdiction.  .  .  . 
It  is  the  essential  criterion  of  appellate  jurisdiction,  that  it  revises 
and  corrects  the  proceedings  in  a  cause  already  instituted,  and 
does  not  create  that  cause.  Although,  therefore,  a  mandamus  may 
be  directed  to  courts,  yet  to  issue  such  a  writ  to  an  officer  for  the 


MARBUBY  v.  MADISON.  3 

delivery  of  a  paper,  is  in  effect  the  same  as  to  sustain  an  original 
action  for  that  paper,  and,  therefore,  seems  not  to  belong  to 
appellate,  but  to  original  jurisdiction.  Neither  is  it  necessary  in 
such  a  case  as  this,  to  enable  the  court  to  exercise  its  appellate 
jurisdiction. 

The  authority,  therefore,  given  to  the  supreme  court,  by  the 
act  establishing  the  judicial  courts  of  the  United  States,  to  issue 
writs  of  Hitimlamus  to  public  officers,  appears  not  to  be  warranted 
liy  the  constitution;  and  it  becomes  necessary  to  inquire  whether 
a  jurisdiction  so  conferred  can  be  exercised. 

The  question  whether  an  act  repugnant  to  the  constitution  can 
become  the  law  of  the  land,  is  a  question  deeply  interesting  to 
the  United  States ;  but,  happily,  not  of  an  intricacy  proportioned 
to  its  interest.  It  seems  only  necessary  to  recognize  certain  prin- 
ciples supposed  to  have  been  long  and  well  established,  to 
decide  it. 

That  the  people  have  an  original  right  to  establish,  for  their 
future  government,  such  principles  as,  in  their  opinion,  shall  most 
conduce  to  their  own  happiness,  is  the  basis  on  which  the  whole 
American  fabric  has  been  erected.  The  exercise  of  this  original 
right  is  a  very  great  exertion;  nor  can  it  nor  ought  it  to  be 
frequently  repeated.  The  principles,  therefore,  so  established, 
are  deemed  fundamental.  And  as  the  authority  from  which  they 
proceed  is  supreme,  and  can  seldom  act,  they  are  designed  to  be 
permanent 

This  original  and  supreme  will  organizes  the  government,  and 
assigns  to  different  departments  their  respective  powers.  It  may 
either  stop  here,  or  establish  certain  limits  not  to  be  transcended 
by  those  departments. 

The  government  of  the  United  States  is  of  the  latter  descrip- 
tion. The  powers  of  the  legislature  are  defined  and  limited ;  and 
that  those  limits  may  not  be  mistaken,  or  forgotten,  the  consti- 
tution is  written.  To  what  purpose  are  powers  limited,  and  to 
what  purpose  is  that  limitation  committed  to  writing,  if  these 
limits  may,  at  any  time,  be  passed  by  those  intended  to  be  re- 
st rained  T  The  distinction  between  a  government  with  limited 
and  unlimited  powers  is  abolished,  if  those  limits  do  not  confine 
the  persons  on  whom  they  are  imposed,  and  if  acts  prohibited  and 
acts  allowed  are  of  equal  obligation.  It  is  a  proposition  too  plain 
to  be  contested,  that  the  constitution  controls  any  legislative  act 
repugnant  to  it ;  or,  that  the  legislature  may  alter  the  constitu- 
tion by  an  ordinary  act. 

Between  these  alternatives  there  is  no  middle  ground.     The 


4  CASES  ON  CONSTITUTIONAL  LAW. 

constitution  is  either  a  superior  paramount  law,  unchangeable  by 
ordinary  means,  or  it  is  on  a  level  with  ordinary  legislative  acts, 
and,  like  other  acts,  is  alterable  when  the  legislature  shall  please 
to  alter  it. 

If  the  former  part  of  the  alternative  be  true,  then  a  legislative 
act  contrary  to  the  constitution  is  not  law ;  if  the  latter  part  be 
true,  then  written  constitutions  are  absurd  attempts,  on  the  part 
of  the  people,  to  limit  a  power  in  its  own  nature  illimitable. 

Certainly  all  those  who  have  framed  written  constitutions  con- 
template them  as  forming  the  fundamental  and  paramount  law  of 
the  nation,  and,  consequently,  the  theory  of  every  such  govern- 
ment must  be,  that  an  act  of  the  legislature,  repugnant  to  the 
constitution,  is  void. 

This  theory  is  essentially  attached  to  a  written  constitution, 
and  is  consequently  to  be  considered,  by  this  court,  as  one  of  the 
fundamental  principles  of  our  society.  It  is  not,  therefore,  to  be 
lost  sight  of  in  the  further  consideration  of  this  subject. 

If  an  act  of  the  legislature,  repugnant  to  the  constitution,  is 
void,  does  it,  notwithstanding  its  invalidity,  bind  the  courts,  and 
oblige  them  to  give  it  effect?  Or,  in  other  words,  though  it  be 
not  law,  does  it  constitute  a  rule  as  operative  as  if  it  was  a  law  ? 
This  would  be  to  overthrow  in  fact  what  was  established  in 
theory ;  and  would  seem,  at  first  view,  an  absurdity  too  gross  to 
be  insisted  on.  It  shall,  however,  receive  a  more  attentive  con- 
sideration. 

It  is  emphatically  the  province  and  duty  of  the  judicial  depart- 
ment to  say  what  the  law  is.  Those  who  apply  the  rule  to  particu- 
lar cases,  must  of  necessity  expound  and  interpret  that  rule.  If 
two  laws  conflict  with  each  other,  the  courts  must  decide  on  the 
operation  of  each. 

So  if  a  law  be  in  opposition  to  the  constitution ;  if  both  the  law 
and  the  constitution  apply  to  a  particular  case,  so  that  the  court 
must  either  decide  that  case  conformably  to  the  law,  disregarding 
the  constitution,  or  conformably  to  the  constitution,  disregarding 
the  law,  the  court  must  determine  which  of  these  conflicting  rules 
governs  the  case.  This  is  of  the  very  essence  of  judicial  duty. 

If,  then,  the  courts  are  to  regard  the  constitution,  and  the  con- 
stitution is  superior  to  any  ordinary  act  of  the  legislature,  the 
constitution,  and  not  such  ordinary  act,  must  govern  the  case  to 
which  they  both  apply. 

Those,  then,  who  controvert  the  principle  that  the  constitution 
is  to  be  considered,  in'  court,  as  a  paramount  law,  are  reduced  to 


MARBURY  v.  MADISON.  5 

the  necessity  of  maintaining  that  courts  must  close  their  eyes  on 
the  constitution,  and  see  only  the  law. 

This  doctrine  would  subvert  the  very  foundation  of  all  written 
constitutions.  It  would  declare  that  an  act  which,  according  to 
the  principles  and  theory  of  our  government,  is  entirely  void,  is 
yet,  in  practice,  completely  obligatory.  It  would  declare  that  if 
the  legislature  shall  do  what  is  expressly  forbidden,  such  act, 
notwithstanding  the  express  prohibition,  is  in  reality  effectual.  It 
would  be  giving  to  the  legislature  a  practical  and  real  omni- 
potence, with  the  same  breath  which  professes  to  restrict  their 
powers  within  narrow  limits.  It  is  prescribing  limits,  and  declar- 
ing that  those  limits  may  be  passed  at  pleasure. 

That  it  thus  reduces  to  nothing  what  we  have  deemed  the  great- 
est improvement  on  political  institutions,  a  written  constitution, 
would  of  itself  be  sufficient,  in  America,  where  written  constitu- 
tions have  been  viewed  with  so  much  reverence,  for  rejecting  the 
construction.  But  the  peculiar  expressions  of  the  constitution  of 
the  United  States  furnish  additional  arguments  in  favor  of  its 
rejection. 

The  judicial  power  of  the  United  States  is  extended  to  all  cases 
arising  under  the  constitution. 

Could  it  be  the  intention  of  those  who  gave  this  power,  to  say 
that  in  using  it  the  constitution  should  not  be  looked  into?  That 
a  case  arising  under  the  constitution  should  be  decided  without 
examining  the  instrument  under  which  it  arises? 

This  is  too  extravagant  to  be  maintained. 

In  some  cases,  then,  the  constitution  must  be  looked  into  by  the 
judges.  And  if  they  can  open  it  at  all,  what  part  of  it  are  they 
forbidden  to  read  or  to  obey? 

There  are  many  other  parts  of  the  constitution  which  serve  to 
illustrate  this  subject. 

It  is  declared  that  "no  tax  or  duty  shall  be  laid  on  articles 
exported  from  any  State."  Suppose  a  duty  on  the  export  of  cot- 
ton, of  tobacco,  or  of  flour;  and  a  suit  instituted  to  recover  it. 
Ought  judgment  to  be  rendered  in  such  a  case?  Ought  the  judges 
to  close  their  eyes  on  the  constitution,  and  only  see  the  law? 

The  constitution  declares  ' '  that  no  bill  of  attainder  or  ex  post 
facto  law  shall  be  passed." 

If,  however,  such  a  bill  should  be  passed,  and  a  person  should 
be  prosecuted  under  it,  must  the  court  condemn  to  death  those 
victims  whom  the  constitution  endeavors  to  preserve? 

"No  person,"  says  the  constitution,  "shall  be  convicted  of 


6  CASES  ON  CONSTITUTIONAL  LAW. 

treason  unless  on  the  testimony  of  two  witnesses  to  the  same  overt 
act,  or  on  confession  in  open  court. ' ' 

Here  the  language  of  the  constitution  is  addressed  especially  to 
the  courts.  It  prescribes,  directly  for  them,  a  rule  of  evidence  not 
to  be  departed  from.  If  the  legislature  should  change  that  rule, 
and  declare  one  witness,  or  a  confession  out  of  court,  sufficient  for 
conviction,  must  the  constitutional  principle  yield  to  the  legis- 
lative act  ? 

From  these,  and  many  other  selections  which  might  be  made,  it 
is  apparent  that  the  framers  of  the  constitution  contemplated 
that  instrument  as  a  rule  for  the  government  of  courts,  as  well  as 
of  the  legislature. 

Why  otherwise  does  it  'direct  the  judges  to  take  an  oath  to  sup- 
port it  ?  This  oath  certainly  applies  in  an  especial  manner  to  their 
conduct  in  their  official  character.  How  immoral  to  impose  it  on 
them,  if  they  were  to  be  used  as  the  instruments,  and  the  knowing 
instruments,  for  violating  what  they  swear  to  support ! 

The  oath  of  office,  too,  imposed  by  the  legislature,  is  completely 
demonstrative  of  the  legislative  opinion  on  this  subject.  It  is  in 
these  words:  "I  do  solemnly  swear  that  I  will  administer  justice 
without  respect  to  persons,  and  do  equal  right  to  the  poor  and  to 
the  rich ;  and  that  I  will  faithfully  and  impartially  discharge  all 
the  duties  incumbent  on  me  as  ,  according  to  the  best  of  my 

abilities  and  understanding,  agreeably  to  the  constitution  and 
laws  of  the  United  States. ' ' 

Why  does  a  judge  swear  to  discharge  his  duties  agreeably  to 
the  constitution  of  the  United  States,  if  that  constitution  forms 
no  rule  for  his  government — if  it  is  closed  upon  him,  and  cannot 
be  inspected  by  him? 

If  such  be  the  real  state  of  things,  this  is  worse  than  solemn 
mockery.  To  prescribe,  or  to  take  this  oath,  becomes  equally  a 
crime. 

It  is  also  not  entirely  unworthy  of  observation,  that  in  declaring 
what  shall  be  the  supreme  law  of  the  land,  the  constitution  itself 
is  first  mentioned;  and  not  the  laws  of  the  United  States  gen- 
erally, but  those  only  which  shall  be  made  in  pursuance  of  the 
constitution,  have  that  rank. 

Thus,  the  particular  phraseology  of  the  constitution  of  the 
United  States  confirms  and  strengthens  the  principle,  supposed 
to  be  essential  to  all  written  constitutions,  that  a  law  repugnant 
to  the  constitution  is  void;  and  that  courts,  as  well  as  other 
departments,  are  bound  by  that  instrument. 

The  rule  must  be  discJiarged. 


MARBURT  v.  MADISON  7 

NOTE. — The  principle  that  an  act  of  legislation  contrary  to  the  law  under 
which  a  legislative  body  is  organized  is  invalid  was  familiar  to  Americans  at 
the  time  the  Constitution  was  adopted.  Prior  to  the  Revolution,  the  validity 
of  an  act  could  bo  tested  in  two  ways, — by  an  appeal  to  the  King  in  Council 
to  set  aside  the  enactment  of  a  colonial  legislature,  or  by  an  appeal  from 
the  decision  of  a  colonial  court.  Beginning  with  the  Virginia  charter  of 
1612,  the  legislatures  of  the  colonies  were  always  expressly  restricted  to  the 
adoption  of  laws  not  repugnant  to  those  of  England,  while  it  was  necessarily 
implied  that  their  enactments  should  conform  to  all  the  terms  of  the  charters 
under  which  they  acted.  In  all  the  royal  colonies  it  was  required  that  the 
enactments  of  the  colonial  legislatures  should  be  submitted  to  the  Crown,  and 
such  as  did  not  meet  with  its  approval  could  be  * '  disallowed. ' '  On  July  4, 
1660,  there  was  appointed  a  Committee  of  the  Privy  Council  for  the  consid- 
eration of  ' '  petitions,  propositions,  memorials,  and  other  addresses  .... 
respecting  the  Plantations."  Acts  of  the  Privy  Council,  I,  xiii.  In  1677 
this  Committee  annulled  three  acts  of  the  legislature  of  Virginia  on  the 
ground  that  they  were  in  excess  of  its  powers.  In  1696  this  Committee  was 
succeeded  by  a  more  famous  one  known  as  the  ' '  Lords  of  Trade  and  Planta- 
tion,"  commonly  called  the  Board  of  Trade,  which  until  its  dissolution  in 
1782  was  the  chief  instrumentality  of  the  Privy  Council  for  dealing  with  all 
matters  relating  to  the  legislation  of  the  colonies.  In  reviewing  the  acts  of 
the  colonial  legislatures,  the  Board  was  concerned  not  only  with  the  power 
of  the  legislature  to  enact  the  measure  in  question  but  also  with  the  expediency 
of  the  enactment.  Before  beginning  the  consideration  of  such  acts,  the 
Board  commonly  referred  them  to  law  officers  for  an  opinion  "in  point  of 
law,"  the  point  which  was  most  frequently  raised  being  that  of  legislative 
power.  It  was  not  unusual  for  such  officers  to  hear  counsel  for  the  colonists 
or  for  persons  interested  in  the  legislation  under  discussion.  On  the  ground 
that  they  conflicted  with  the  colonial  charter  or  with  the  laws  of  England, 
enactments  were  disallowed  from  Virginia  in  1677,  from  Rhode  Island  in 
1704,  from  Connecticut  in  1705,  from  North  Carolina  in  1747,  from  Pennsyl- 
vania in  1760,  from  New  Hampshire  in  1764,  and  from  Massachusetts  in 
In  all,  8563  acts  of  the  colonies  which  later  formed  the  United  States 
were  submitted  to  the  Privy  Council,  of  which  469  were  disallowed.  The 
records  of  the  Privy  Council  are  so  im|>erfect  as  to  make  it  impossible  to 
determine  how  many  of  these  were  set  aside  because  of  lack  of  authority  on 
the  part  of  the  legislature  to  enact  them,  but  enough  is  known  to  know  that 
the  proportion  is  large.  For  a  full  treatment  of  this  subject  see  Russell, 
The  Review  of  Colonial  Legislation  by  the  Ki»<i  in  C«um  i/;  Andrews,  British 
Committees,  Commissions,  and  Councils  of  Trade  and  Plantations;  Chalmers, 
Opinion*. 

Besides  appeals  to  the  Privy  Council  from  the  enactments  of  colonial 
legislatures,  there  were  also  many  ap]»eals  from  the  derisions  of  colonial 
courts.  The  best  known  instance  of  this  is  the  famous  case  of  Winthrop  v. 
Lechmere  (1727-8),  Thayer,  Cases  on  Constitutional  Law,  I,  34.  In  this  case 
the  appellant  argifed  that  an  act  of  the  General  Assembly  of  Connect  nut 
entitled  "An  Act  for  the  Settlement  of  Intestates'  Estates"  was  void  "as 
not  being  warranted  by  the  Charter,"  and  the  Privy  Council  so  advised  His 
Majesty,  who  thereupon  issued  a  decree  declaring  the  Act  "null  and  void 
and  of  no  force  or  effect  whatever. ' '  The  nature  of  the  King 's  action  was 


8  CASES  ON  CONSTITUTIONAL  LAW. 

appreciated  by  Winthrop  and  correctly  set  forth  by  him  in  a  petition  in  1730, 
in  which  he  said : 

This  action  being  for  the  reasons  above  mentioned,  in  its  own 
nature  null,  void,  and  repugnant  to  the  very  powers  granted  by 
King  Charles  the  Second,  it  is  a  gross  mistake  in  the  petitioners  to 
allege  that  the  same  was  annulled  by  his  Majesty's  order  in  Council 
of  the  5th  of  February,  1727.  Whereas  his  Majesty  did,  upon 
counsel  heard  upon  both  sides  thereof,  only  relieve  your  memorialist 
as  a  subject  and  an  inhabitant  of  the  Province  of  Connecticut,  who 
resorted  to  his  royal  justice  for  relief  against  the  oppression  of  a 
Court  of  Probates  acting  without  any  legal  jurisdiction,  under  the 
pretended  authority  of  an  Act  of  Assembly,  which  being  contrary 
to  law  and  to  their  charter  was  in  itself  void  and  null,  even  before 
hia  Majesty  for  the  future  information  of  his  Majesty's  subjects 
in  Connecticut  was  graciously  pleased  to  declare  it  so. 

76.,  I,  39n. 

Here  again  the  records  of  the  Privy  Council  are  so  imperfect  that  it  is 
impossible  to  determine  how  many  of  the  cases  appealed  to  it  from  the 
American  colonies,  aggregating  more  than  260  in  number,  were  based  on  an 
alleged  conflict  between  a  legislative  enactment  and  a  colonial  charter. 
Besides  Winthrop  v.  Lechmere,  two  other  well  authenticated  cases  are  known 
— Philips  v.  Savage  (1738),  Acts  of  the  Privy  Council,  III,  432,  in  which 
the  Privy  Council  upheld  the  decrees  of  the  Massachusetts  court,  and  Clark 
v.  Tousey  (1745),  /&.,  Ill,  580,  in  which  the  Privy  Council  reversed  its 
decision  in  Winthrop  v.  Lechmere.  For  an  excellent  treatment  of  this  sub- 
ject see  Schlesinger,  ' '  Colonial  Appeals  to  the  Privy  Council, ' '  in  Political 
Science  Quarterly,  XXVIII,  279,  433.  Also  see  Hazeltine,  "Appeals  from 
the  Colonial  Courts  to  the  King  in  Council, ' '  Annual  Report  of  the  American 
Historical  Association  for  1894,  299.  In  several  of  the  colonies  attempts 
were  made  to  prevent  appeals  to  the  King  in  Council,  thus  leaving  to  the 
colonial  courts  the  final  determination  of  the  validity  of  colonial  legislation. 
But  the  Privy  Council  declared  that  "an  appeal  doth  lye  to  H.  M.  in  his 
Council  as  a  right  inherent  in  the  Crown. ' '  Cited  by  Schlesinger,  in  Political 
Science  Quarterly,  XXVIII,  295.  See  also  the  case  of  Christian  v.  Corren 
(1716),  1  Peere  Williams,  329,  also  in  MacQueen,  The  Appellate  Jurisdiction 
of  the  House  of  Lords  and  Privy  Council,  740. 

The  distinction  between  the  function  of  the  Privy  Council  as  a  sort  of 
board  for  the  review  of  colonial  legislation  and  its  function  as  a  court  to  hear 
appeals  from  the  decisions  of  colonial  courts  was  well  indicated  in  an 
opinion  of  Sir  Charles  Pratt  (afterwards  Lord  Cam  den),  Attorney  General, 
and  Hon.  Charles  Yorke,  Solicitor  General,  given  August  19,  1760.  Ques- 
tioned as  to  the  power  of  the  King  to  set  aside  particular  clauses  of  an  act 
of  colonial  legislation  leaving  the  rest  of  the  act  in  force,  they  advised  that 
this  should  not  be  done,  but  added : 

At  the  same  time  we  are  of  opinion  that  there  may  be  cases  in 
which  particular  provisions  may  be  void  ab  initio  though  other  parts 
of  the  law  may  be  valid,  as  in  clauses  where  any  act  of  Parliament 
may  be  contraversed  or  any  legal  right  of  a  private  subject 
bound  without  his  consent.  These  are  cases  the  decision  of  which 
does  not  depend  on  the  exercise  of  a  discretionary  prerogative, 


MARBURY  v.  MADISON.  9 

bat  may  arise  judicially  and  mast  be  determined  bj  the  general 
rules  of  law  and  the  constitution  of  England.  And  upon  this  ground 
it  is,  that  in  some  instances  whole  acts  of  assembly  have  been  de- 
clared void  in  the  courts  of  Westminster  Hall,  and  by  His  Majesty 
in  council  upon  appeals  from  the  plantations. 

Statutes  at  Large  of  Pennsylvania,  V,  735. 

Besides  the  cases  appealed  to  the  Privy  Council,  the  right  of  the  courts 
to  determine  the  validity  of  acts  of  the  legislature  had  been  involved  in  cases 
in  at  least  five  States  before  the  assembling  of  the  Federal  Convention,  viz. 
in  Holmes  v.  Walton,  New  Jersey,  1780 ;  in  Commonwealth  v.  Caton,  Virginia, 
1782;  in  Rutgers  v.  Waddington,  New  York,  1784;  in  Trevett  v.  Weeden, 
Rhode  Island,  1786;  and  Bayard  v.  Singleton,  North  Carolina,  1787.  All 
these  eaaes  are  printed  in  Thayer,  Cases,  I,  55-83,  except  Holmes  v.  Walton, 
for  which  see  American  Historical  Eeview,  IV,  456.  In  Rutgers  v.  Wadding- 
ton,  the  court  distinctly  repudiated  any  claim  of  right  to  question  the  valid- 
ity of  a  legislative  enactment.  In  Commonwealth  v.  Caton  the  facts  did  not 
require  the  court  to  pass  upon  the  question,  but  in  the  opinion  of  Chancellor 
Wythe,  there  is  this  strong  dictum: 

If  the  whole  legislature,  an  event  to  be  deprecated,  should  at- 
tempt to  overleap  the  bounds  prescribed  to  them  by  the  people,  I,  in 
administering  the  public  justice  of  the  country,  will  meet  the  united 
powers  at  my  seat  in  this  tribunal ;  and,  pointing  to  the  Constitution, 
will  say  to  them,  here  is  the  limit  of  your  authority,  and  hither  shall 
you  go,  but  no  further. 

This  dictum  derives  additional  interest  from  the  fact  that  the  judge  who 
made  it  was  John  Marshall  'a  preceptor  in  law  at  the  College  of  William  and 
Mary. 

By  far  the  best  known  of  these  cases  is  that  of  Trevett  v.  Weeden,  where 
the  judges,  while  dismissing  the  case  for  lack  of  jurisdiction,  nevertheless 
pronounced  an  act  of  the  legislature  invalid,  and  were  summoned  before  that 
body  to  give  an  account  of  themselves.  One  of  the  judges  defended  their 
decision  "in  a  very  learned,  sensible,  and  elaborate  discourse  in  which  he 
was  upwards  of  six  hours  upon  the  floor. ' '  Neither  this  argument  nor  that 
of  the  other  judges  satisfied  the  legislature,  for  it  "Resolved,  that  no  satis- 
factory reasons  had  been  rendered  by  them  for  their  judgment  on  the  fore- 
going information. ' '  See  Records  of  the  State  of  Rhode  Island  and  Provi- 
dence Plantations,  edited  by  J.  R.  Bartlett,  X,  215.  When  the  terms  of  the 
judges,  who  were  elected  by  the  legislature,  expired  a  short  time  after,  the 
legislature  allowed  all  but  one  of  them  to  retire  from  the  bench.  In  Holmes 
v.  Walton  and  Bayard  v.  Singleton,  the  judgment  of  the  court  pronouncing 
a  legislative  act  invalid  was  acquiesced  in  by  the  legislature. 

In  the  Federal  Convention  and  also  in  the  State  convention*  called  to  act 
on  the  new  Constitution,  the  question  was  frequently  raised  as  to  what  would 
happen  in  case  Congress  should  adopt  an  act  which  contravened  or  exceeded 
the  powers  with  which  it  was  vested.  This  discussion  is  well  summarized  in 
Melvin,  "The  Judicial  Bulwark  of  the  Constitution,"  in  The  American 
Political  Science  Eeview,  VIII,  167.  In  the  Convention  of  Virginia  Marshall 
said, ' '  If  they  were  to  make  a  law  not  warranted  by  any  of  the  powers  enu- 


10  CASES  ON  CONSTITUTIONAL  LAW. 

merated,  it  would  be  considered  by  the  judges  as  an  infringement  of  the 
Constitution  which  they  are  to  guard.  They  would  not  consider  such  a  law 
as  coming  under  their  jurisdiction.  They  would  declare  it  void. ' '  Elliot 's 
Debates,  III,  553.  Patrick  Henry  said  in  the  same  body,  "I  take  it  as  the 
highest  encomium  on  this  country,  that  the  acts  of  the  legislature,  if  uncon- 
stitutional, are  liable  to  be  opposed  by  the  judiciary. "  76.,  Ill,  325.  Similar 
declarations  were  made  in  many  other  States,  as  for  instance  by  William  B. 
Davie  in  the  North  Carolina  Convention,  76.,  IV,  155;  by  Oliver  Ellsworth 
in  the  Connecticut  Convention,  76.,  II,  196 ;  by  Samuel  Adams  in  the  Massa- 
chusetts Convention,  76.,  II,  151 ;  by  Charles  Pinckney  in  the  South  Carolina 
Legislature,  76.,  IV,  257,  and  by  James  "Wilson  in  the  Pennsylvania  Conven- 
tion, 76.,  II,  489;  while  Alexander  Hamilton  made  the  same  idea  current 
throughout  the  country  by  saying  in  The  Federalist : 

The  interpretation  of  the  laws  is  the  proper  and  peculiar  province 
of  the  courts.  A  Constitution  is,  in  fact,  and  must  be  regarded  by 
the  judges  as  a  fundamental  law.  It  must  therefore  belong  to  them 
to  ascertain  its  meaning,  as  well  as  the  meaning  of  any  particular 
act  proceeding  from  the  legislative  body.  If  there  should  happen  to 
be  an  irreconcilable  variance  between  the  two,  that  which  has  the 
superior  obligation  and  validity  ought,  of  course,  to  be  preferred: 
In  other  words,  the  Constitution  ought  to  be  preferred  to  the 
statutes,  the  intention  of  the  people  to  the  intention  of  their  agents. 

The  power  of  the  courts  to  declare  legislative  acts  invalid  because  of 
conflict  with  the  Constitution  is  often  said  to  be  peculiar  to  the  United 
States,  but  it  is  found  in  many  other  countries.  The  Privy  Council  of  Great 
Britain  still  continues  to  set  aside  acts  of  the  colonial  legislatures  because 
of  conflict  with  the  fundamental  colonial  law.  Among  recent  cases,  see 
Eoyal  Bank  of  Canada  v.  The  King,  1913,  Appeal  Cases,  283 ;  Cotton  v.  The 
King,  1914,  Appeal  Cases,  176;  Attorney-General  for  Alberta  v.  Attorney- 
General  for  Canada,  1915,  Appeal  Cases,  363.  The  courts  of  appeals  of  the 
several  colonies  exercise  a  similar  power.  See  the  decisions  of  the  High 
Court  of  Australia  in  Australian, Boot  Trade  Employees'  Federation  v.  Why- 
brow  (1910),  10  Commonwealth  Law  Eeports,  267,  and  The  King  v.  Com- 
monwealth Court  of  Conciliation  and  Arbitration  (1910),  11  Commonwealth 
Law  Eeports,  2.  For  New  Zealand,  see  Clemison  v.  Mayor  of  West  Harbour 
(1895),  13  New  Zealand  Law  Eeports,  695.  For  South  Africa,  see  Mu- 
nicipality of  Worcester  v.  Colonial  Government  (1907),  24  S.  C.,  Cape  of 
Good  Hope,  67,  and  Howard  v.  The  Attorney  General  (1909),  Transvaal  Law 
Eeports,  High  Court,  164.  This  power  is  not  confined  to  British  and 
American  jurisdictions  but  is  found  in  Argentina  (Eoscoe  Pound,  The 
Judicial  Office  in  the  United  States,  17,  20),  in  Bolivia  (Annual  Bulletin, 
Comparative  Law  Bureau  of  the  American  Bar  Association,  July  1,  1914, 
69),  Colombia  (76.,  101),  Cuba  (76.,  104),  Mexico  (76.,  121),  Venezuela 
(76.,  148).  For  these  and  other  details  see  Report  to  the  New  York  State 
Bar  Association,  Senate  Document,  No.  941,  63rd  Congress,  3rd  Session. 

A  statute  is  always  presumed  to  be  valid,  Ex  parte  Young  (1908),  209 
U.  S.  123,  and  if  its  language  permits,  the  courts  will  so  construe  it  as  to 
preserve  its  validity.  Knights  Templars'  Indemnity  Company  v.  Jarman 
(1902),  187  U.  S.  197  j  United  States  v.  Delaware  &  Hudson  Ey.  (1909),  213 


MARBURY  v.  MADISON  11 

U.  8.  366;  St.  Louis  Southwestern  Ry.  v.  Arkansas  (1914),  235  U.  8.  350. 
Except  in  a  few  States  where  the  courts  are  required  to  give  advisory 
opinions,  a  court  will  not  pass  upon  the  validity  of  a  statute  except  as  inci- 
dental to  the  decision  of  a  case  before  it,  and  then  only  when  it  is  necessary 
to  the  decision.  California  v.  San  Pablo  &  Tulare  By.  (1893),  149  U.  S.  308. 
Only  one  whose  rights  are  affected  by  a  statute  will  be  allowed  to  question 
its  constitutionality.  The  Winnebago  (1907),  205  U.  S.  354;  Mallinckrodt 
Chemical  Works  v.  8t  Louis  (1915),  238  U.  S.  41.  Hence  the  courts 
will  not  permit  the  validity  of  a  statute  to  be  tested  in  a  friendly  suit  where 
there  is  no  real  antagonism  of  interests,  Chicago  &  Grand  Trunk  By.  v. 
Wellman  (1892),  143  U.  S.  339,  nor  will  they  accept  jurisdiction  for  the 
sole  purpose  of  testing  the  validity  of  a  statute,  Muskrat  v.  United  States 
(1911),  219  U.  S.  346;  nor  will  the  Federal  Supreme  Court  review  the  de- 
cision of  a  State  court  where  the  interest  involved  is  an  official  and  not  a 
personal  one.  Marshall  v.  Dye  (1913),  231  U.  8.  250. 

A  statute  may  contain  provisions  which  are  constitutional  and  others 
which  are  not.  If  they  are  separable  the  court  will  enforce  those  which 
are  valid,  provided  it  is  convinced  that  the  legislature  would  have  enacted 
them  without  the  invalid  provisions.  Pollock  v.  Farmers'  Loan  and  Trust 
Co.  (1895),  158  U.  8.  601;  Illinois  Central  Railway  v.  McKendree 
(1906),  203  U.  8.  514;  The  Employers'  Liability  Cases  (1908),  207 
U.  S.  463.  In  all  such  cases  the  courts  endeavor  to  ascertain  and 
apply  the  will  of  the  legislature.  The  Trade  Mark  Cases  (1879), 
100  U.  8.  82;  James  v.  Bowman  (1903),  190  U.  8.  1£7.  In  determining 
whether  an  act  is  valid  the  courts  do  not  inquire  into  the  motives  of  the  legis- 
lature, Fletcher  v.  Peck  (1810),  6  Cranch,  87;  Interstate  Commerce  Com- 
mission v.  Brimson  (1894),  154  U.  S.  447;  McCray  v.  United  States  (1904), 
195  U.  S.  27 ;  nor  are  they  concerned  with  the  wisdom  or  expediency  of  the 
act,  Halter  v.  Nebraska  (1907),  205  U.  8.  34.  The  validity  of  an  act  depends 
upon  its  actual  operation  and  effect  as  applied  and  enforced  rather  than 
upon  its  form.  Minnesota  v.  Barber  (1890),  136  U.  8.  313;  United  States 
v.  Reynolds  (1914),  235  U.  8.  133.  "An  unconstitutional  act  is  not  a  law. 
It  confers  no  rights;  it  imposes  no  duties;  it  affords  no  protection;  it  creates 
no  office.  It  is,  in  a  legal  contemplation,  as  inoperative  as  though  it  had 
never  been  passed."  Justice  Field  in  Norton  v.  Shelby  County  (1886),  118 
U.  8.  425.  There  is  authority  however  for  holding  that  an  unconstitutional 
act  may  not  be  treated  as  an  absolute  nullity  from  the  date  of  its  enactment 
to  the  date  of  its  setting  aside  by  the  courts.  United  States  v.  Realty  Co. 
(1896),  163  U.  S.  427.  Especially  may  an  officer  who  conforms  to  a  legislative 
act  claim  the  protection  of  that  act  if  it  is  not  void  on  its  face.  The  State 
v.  Carroll  (1871),  38  Connecticut  449;  State  ex  rel.  New  Orleans  Canal  and 
Banking  Co.  et  al.  v.  Heard  (1895),  47  La.  Ann.  1679;  47  L.  B.  A.  :>r.'. 
where  a  learned  note  collects  the  cases  on  the  subject  See  also  Allison  v. 
Corker  (1902),  67  N.  J.  Law,  596,  annotated  in  60  L.  R.  A.  564,  where  the 
court  says,  "For  many  purposes  an  unconstitutional  statute  may  influence 
judicial  judgment,  where,  for  example,  under  color  of  it  private  or  public 
actions  have  been  taken.  An  unconstitutional  statute  is  not  merely  M.-tnk 
paper.  The  solemn  act  of  the  legislature  is  a  fact  to  be  reckoned  with. 
Nowhere  has  power  been  vested  to  expunge  it  or  remove  it  from  its  proper 
place  among  the  statutes. ' ' 

There  is  a  voluminous  literature  upon  the  power  of  the  courts  to  disregard 


12  CASES  ON  CONSTITUTIONAL  LAW. 

unconstitutional  legislation.  Besides  the  authorities  cited  above,  see  Baldwin, 
The  American  Judiciary;  Beard,  The  Supreme  Court  and  the  Constitution; 
Brinton  Cox,  Judicial  Power  and  Unconstitutional  Legislation;  Corwin,  The 
Doctrine  of  Judicial  Eeview;  Dougherty,  Power  of  the  Federal  Judiciary  over 
Legislation;  Haines,  The  American  Doctrine  of  Judicial  Supremacy;  Mc- 
Laughlin,  The  Courts,  the  Constitution  and  Parties;  J.  B.  Thayer,  Legal 
Essays.  A  list  of  cases  in  which  the  Federal  Supreme  Court  has  declared 
statutes  or  parts  of  statutes  invalid  down  to  the  end  of  the  October  Term, 
1888,  is  given  in  131  U.  S.,  Appendix,  ccxxxv;  but  it  is  not  accurate. 
United  States  v.  Ferreira,  13  Howard  40,  which  is  included,  should  be 
omitted,  and  Scott  v.  Sandford,  19  Howard  393,  which  is  omitted,  should  be 
included.  A  later  and  more  reliable  enumeration  and  classification  of  such 
decisions  may  be  found  in  Moore,  The  Supreme  Court  and  Unconstitutional 
Legislation.  For  the  argument  against  the  doctrine  of  Marbury  v.  Madison 
see  Eakin  v.  Eaub  (1825),  12  Sargeant  &  Eawle,  330,  also  in  Thayer,  Cases,  I, 
133,  Jackson's  veto  of  the  United  States  Bank  bill,  Eichardson,  Messages 
and  Papers  of  the  Presidents,  II,  581-583,  and  a  speech  by  Eoscoe  Conkling, 
April  16,  1860,  Congressional  Globe,  36th  Congress,  1st  session,  App.  233. 


SECTION  2.    IMPLIED  AND  INHERENT  POWERS  OF 
THE  FEDERAL  GOVERNMENT. 

The  Congress  shall  have  power  ...  To  make  all  laws  which 
shall  be  necessary  and  proper  for  carrying  into  execution  the  fore- 
going powers,  and  all  other  powers  vested  by  the  Constitution  in  the 
government  of  the  United  States,  or  in  any  department  or  officer 
thereof. 

Constitution  of  the  United  States,  Art.  I,  sec.  8. 

McCULLOCH  v.  THE  .STATE  OF  MARYLAND  ET  AL. 

SUPREME  COURT  OF  THE  UNITED  STATES.     1819. 
4  Wheaton,  316;  4  Lawyers'  Ed.  579. 

Error  to  the  Court  of  Appeals  of  the  State  of  Maryland.    .    .    . 

[In  1816,  Congress  incorporated  the  Bank  of  the  United  States, 
which  in  1817  established  a  branch  in  Baltimore.  In  1818  the 
legislature  of  Maryland  passed  "An  Act  to  impose  a  Tax  on  all 
Banks,  or  Branches  thereof,  in  the  State  of  Maryland,  not  char- 
tered by  the  Legislature."  McCulloch,  the  cashier  of  the  branch 
in  Baltimore,  having  issued  notes  upon  unstamped  paper  in  vio- 
lation of  this  act,  this  suit  was  brought  against  him.  In  the 
course  of  the  argument  both  the  power  of  Congress  to  incorporate 
a  bank  and  the  power  of  a  State  to  tax  such  a  bank  were  called 
in  question.] 


McCULLOCH  v.  STATE  OF  MARYLAND.  13 

MARSHAFJ  .,  C.  J.,  delivered  the  opinion  of  the  court 

In  the  case  now  to  be  determined,  the  defendant,  a  sovereign 
state,  denies  the  obligation  of  a  law  enacted  by  the  legislature  of 
the  Union ;  and  the  plaintiff,  on  his  part,  contests  the  validity  of 
an  act  which  has  been  passed  by  the  legislature  of  the  State. 
The  constitution  of  our  country,  in  its  most  interesting  and  vital 
parts,  is  to  be  considered ;  the  conflicting  powers  of  the  govern- 
ment of  the  Union  and  of  its  members,  as  marked  in  that  consti- 
tution, are  to  be  discussed;  and  an  opinion  given,  which  may 
essentially  influence  the  great  operations  of  the  government.  No 
tribunal  can  approach  such  a  question  without  a  deep  sense  of  its 
importance,  and  of  the  awful  responsibility  involved  in  its  deci- 
sion. But  it  must  be  decided  peacefully,  or  remain  a  source  of 
hostile  legislation,  perhaps  of  hostility  of  a  still  more  serious 
nature ;  and  if  it  is  to  be  so  decided,  by  this  tribunal  alone  can 
the  decision  be  made.  On  the  supreme  court  of  the  United  States 
has  the  constitution  of  our  country  devolved  this  important  duty. 

The  first  question  made  in  the  cause  is,  has  congress  power  to 
incorporate  a  bank  ? 

It  has  been  truly  said,  that  this  can  scarcely  be  considered  as 
an  open  question,  entirely  unprejudiced  by  the  former  proceed- 
ings of  the  nation  respecting  it.  The  principle  now  contested 
was  introduced  at  a  very  early  period  of  our  history,  has  been 
recognized  by  many  successive  legislatures,  and  has  been  acted 
upon  by  the  judicial  department,  in  cases  of  peculiar  delicacy,  as 
a  law  of  undoubted  obligation. 

It  will  not  be  denied,  that  a  bold  and  daring  usurpation  might 
be  resisted,  after  an  acquiescence  still  longer  and  more  complete 
than  this.  But  it  is  conceived  that  a  doubtful  question,  one  on 
which  human  reason  may  pause,  and  the  human  judgment  be  sus- 
pended, in  the  decision  of  which  the  great  principles  of  liberty 
are  not  concerned,  but  the  respective  powers  of  those  who  are 
equally  the  representatives  of  the  people,  are  to  be  adjusted,  if 
not  put  at  rest  by  the  practice  of  the  government,  ought  to  re- 
ceive a  considerable  impression  from  that  practice.  An  exposi- 
tion of  the  constitution,  deliberately  established  by  legislative 
acts,  on  the  faith  of  which  an  immense  property  has  been  ad- 
vanced, ought  not  to  be  lightly  disregarded. 

The  power  now  contested  was  exercised  by  the  first  congress 
elected  under  the  present  eonstittition.  The  bill  for  incorporating 
the  Bank  of  the  United  States  did  not  steal  upon  an  unsuspecting 
legislature,  and  pass  unobserved.  Its  principle  was  completely 
understood,  and  was  opposed  with  equal  zeal  and  ability.  After 


14  CASES  ON  CONSTITUTIONAL  LAW. 

being  resisted,  first  in  the  fair  and  open  field  of  debate,  and  after- 
wards in  the  executive  cabinet,  with  as  much  persevering  talent 
as  any  measure  has  ever  experienced,  and  being  supported  by 
arguments  which  convinced  minds  as  pure  and  as  intelligent  as 
this  country  can  boast,  it  became  a  law.  The  original  act  was 
permitted  to  expire ;  but  a  short  experience  of  the  embarrassments 
to  which  the  refusal  to  revive  it  exposed  the  government,  con- 
vinced those  who  were  most  prejudiced  against  the  measure  of  its 
necessity,  and  induced  the  passage  of  the  present  law.  It  would 
require  no  ordinary  share  of  intrepidity  to  assert,  that  a  meas- 
ure adopted  under  these  circumstances,  was  a  bold  and  plain 
usurpation,  to  which  the  constitution  gave  no  countenance. 

These  observations  belong  to  the  cause :  but  they  are  not  made 
under  the  impression  that,  were  the  question  entirely  new,  the 
law  would  be  found  irreconcilable  with  the  constitution. 

In  discussing  this  question,  the  counsel  for  the  State  of  Mary- 
land have  deemed  it  of  some  importance,  in  the  construction  of 
the  constitution,  to  consider  that  instrument  not  as  emanating 
from  the  people,  but  as  the  act  of  sovereign  and  independent 
States.  The  powers  of  the  general  government,  it  has  been  said, 
are  delegated  by  the  States,  who  alone  are  truly  sovereign ;  and 
must  be  exercised  in  subordination  to  the  States,  who  alone  pos- 
sess supreme  dominion. 

It  would  be  difficult  to  sustain  this  proposition.  The  conven- 
tion which  framed  the  constitution  was,  indeed,  elected  by  the 
state  legislatures.  But  the  instrument,  when  it  came  from  their 
hands,  was  a  mere  proposal,  without  obligation,  or  pretensions 
to  it.  It  was  reported  to  the  then  existing  congress  of  the  United 
States,  with  a  request  that  it  might  "be  submitted  to  a  conven-" 
tion  of  delegates,  chosen  in  each  State,  by  the  people  thereof, 
under  the  recommendation  of  its  legislature,  for  their  assent  and 
ratification. ' '  This  mode  of  proceeding  was  adopted ;  and  by  the 
convention,  by  congress,  and  by  the  State  legislatures,  the  instru- 
ment was  submitted  to  the  people.  They  acted  upon  it,  in  the 
only  manner  in  which  they  can  act  safely,  effectively,  and  wisely, 
on  such  a  subject,  by  assembling  in  convention.  It  is  true,  they 
assembled  in  their  several  States;  and  where  else  should  they 
have  assembled  ?  No  political  dreamer  was  ever  wild  enough  to 
think  of  breaking  down  the  lines  which  separate  the  States,  and 
of  compounding  the  American  people  into  one  common  mass.  Of 
consequence,  when  they  act,  they  act  in  their  States.  But  the 
measures  they  adopt  do  not,  on  that  account,  cease  to  be  the 


McCULLOCH  v.  STATE  OF  MARYLAND  15 

measures  of  the  people  themselves,  or  become  the  measures  of  the 
State  governments. 

From  these  conventions  the  constitution  derives  its  whole  au- 
thority. The  government  proceeds  directly  from  the  people ;  is 
"ordained  and  established"  in  the  name  of  the  people ;  and  is  de- 
da  rt-d  to  be  ordained,  "in  order  to  form  a  more  perfect  union, 
establish  justice,  insure  domestic  tranquility,  and  secure  the  bless- 
ings of  liberty  to  themselves  and  to  their  posterity."  The  assent 
of  the  States,  in  their  sovereign  capacity,  is  implied  in  calling  a 
convention,  and  thus  submitting  that  instrument  to  the  people. 
But  the  people  were  at  perfect  liberty  to  accept  or  reject  it ;  and 
their  act  was  final.  It  required  not  the  affirmance,  and  could  not 
be  negatived,  by  the  State  governments.  The  constitution,  when 
thus  adopted,  was  of  complete  obligation,  and  bound  the  State 
sovereignties. 

It  has  been  said  that  the  people  had  already  surrendered  all 
their  powers  to  the  State  sovereignties,  and  had  nothing  more  to 
give.  But,  surely,  the  question  whether  they  may  resume  and 
modify  the  powers  granted  to  government,  does  not  remain  to  be 
settled  in  this  country.  Much  more  might  the  legitimacy  of  the 
general  government  be  doubted,  had  it  been  created  by  the  States. 
The  powers  delegated  to  the  State  sovereignties  were  to  be  exer- 
cised by  themselves,  not  by  a  distinct  and  independent  sov- 
ereignty, created  by  themselves.  To  the  formation  of  a  league, 
such  as  was  the  confederation,  the  State  sovereignties  were  c«-r- 
tainly  competent.  But  when,  "in  order  to  form  a  more  perfect 
union,"  it  was  deemed  necessary  to  change  this  alliance  into  an 
effective  government,  possessing  great  and  sovereign  powers,  and 
acting  directly  on  the  people,  the  necessity  of  referring  it  to  the 
people,  and  of  deriving  its  powers  directly  from  them,  was  felt 
and  acknowledged  by  all. 

The  government  of  the  Union,  then  (whatever  may  be  the  in- 
fluence of  this  fact  on  the  case),  is  emphatically  and  truly  a  gov- 
ernment of  the  people.  In  form  and  in  substance  it  emanates 
from  them.  Its  powers  are  granted  by  them,  and  are  to  be  exer- 
cised directly  on  them,  and  for  their  benefit. 

This  government  is  acknowledged  by  all  to  be  one  of  enumer- 
ated powers.  The  principle,  that  it  can  exercise  only  the  powers 
granted  to  it,  "would  seem  too  apparent  to  have  required  to  be 
enforced  by  all  those  arguments  which  its  enlightened  friends, 
while  it  was  depending  before  the  people,  found  it  necessary  to 
urge.  That  principle  is  now  universally  admitted.  But  the  ques- 
tion respecting  the  extent  of  the  powers  actually  granted,  is  per- 


16  CASES  ON  CONSTITUTIONAL  LAW. 

petually  arising,  and  will  probably  continue  to  arise,  as  long  as 
our  system  shall  exist. 

In  discussing  these  questions,  the  conflicting  powers  of  the  gen- 
eral and  State  governments  must  be  brought  into  view,  and  the 
supremacy  of  their,  respective  laws,  when  they  are  in  opposition, 
must  be  settled. 

If  any  one  proposition  could  command  the  universal  assent  of 
mankind,  we  might  expect  that  it  would  be  this :  that  the  govern- 
ment of  the  Union,  though  limited  in  its  powers,  is  supreme 
within  its  sphere  of  action.  This  would  seem  to  result  necessarily 
from  its  nature.  It  is  the  government  of  all ;  its  powers  are  dele- 
gated by  all ;  it  represents  all,  and  acts  for  all.  Though  any  one 
State  may  be  willing  to  control  its  operations,  no  State  is  willing 
to  allow  others  to  control  them.  The  nation,  on  those  subjects 
on  which  it  can  act,  must  necessarily  bind  its  component  parts. 
But  this  question  is  not  left  to  mere  reason :  the  people  have,  in 
express  terms,  decided  it,  by  saying,  "this  constitution,  and  the 
laws  of  the  United  States,  which  shall  be  made  in  pursuance 
thereof, "  "  shall  be  the  supreme  law  of  the  land, ' '  and  by  requir- 
ing that  the  members  of  the  State  legislatures,  and  the  officers 
of  the  executive  and  judicial  departments  of  the  States,  shall  take 
the  oath  of  fidelity  to  it. 

The  government  of  the  United  States,  then,  though  limited  in 
its  powers,  is  supreme ;  and  its  laws,  when  made  in  pursuance  of 
the  constitution,  form  the  supreme  law  of  the  land,  ' '  anything  in 
the  constitution  or  laws  of  any  State,  to  the  contrary  notwith- 
standing." 

Among  the  enumerated  powers,  we  do  not  find  that  of  estab- 
lishing a  bank  or  creating  a  corporation.  But  there  is  no  phrase 
in  the  instrument  which,  like  the  articles  of  confederation,  ex- 
cludes incidental  or  implied  powers;  and  which  requires  that 
everything  granted  shall  be  expressly  and  minutely  described. 
Even  the  10th  amendment,  which  was  framed  for  the  purpose  of 
quieting  the  excessive  jealousies  which  had  been  excited,  omits  the 
word  "expressly,"  and  declares  only  that  the  powers  "not  dele- 
gated to  the  United  States,  nor  prohibited  to  the  States,  are  re- 
served to  the  States  or  to  the  people ; ' '  thus  leaving  the  question, 
whether  the  particular  power  which  may  become  the  subject  of 
contest,  has  been  delegated  to  the  one  government,  or  prohibited 
to  the  other,  to'  depend  on  a  fair  construction  of  the  whole  instru- 
ment. The  men  who  drew  and  adopted  this  amendment  had  ex- 
perienced the  embarrassments  resulting  from  the  insertion  of  this 
word  in  the  articles  of  confederation,  and  probably  omitted  it  to 


McCULLOCII  v.  STATE  OF  MARYLAND.  17 

avoid  those  embarrassments.  A  constitution,  to  contain  an  accu- 
rate detail  of  all  the  subdivisions  of  which  its  great  powers  will 
admit,  and  of  all  the  means  by  which  they  may  be  carried  into 
execution,  would  partake  of  the  prolixity  of  a  legal  code,  and 
could  scarcely  be  embraced  by  the  human  mind.  It  would  prob- 
ably never  be  understood  by  the  public.  Its  nature,  therefore,  re- 
quires, that  only  its  great  outlines  should  be  marked,  its  impor- 
tant objects  designated,  and  the  minor  ingredients  which  com- 
pose those  objects  be  deduced  from  the  nature  of  the  objects 
themselves.  That  this  idea  was  entertained  by  the  framers  of  the 
American  constitution,  is  not  only  to  be  inferred  from  the  nature 
of  the  instrument,  but  from  the  language.  Why  else  were  some 
of  the  limitations,  found  in  the  9th  section  of  the  1st  article,  in- 
troduced T  It  is  also,  in  some  degree,  warranted  by  their  having 
omitted  to  use  any  restrictive  term  which  might  prevent  its  re- 
ceiving a  fair  and  just  interpretation.  In  considering  this  ques- 
tion, then,  we  must  never  forget,  that  it  is  a  constitution  we  are 
expounding. 

Although,  among  the  enumerated  powers  of  government,  we 
do  not  find  the  word  "bank,"  or  "incorporation,"  we  find  the 
great  powers  to  lay  and  collect  taxes ;  to  borrow  money ;  to  regu- 
late commerce;  to  declare  and  conduct  war;  and  to  raise  and 
support  armies  and  navies.  The  sword  and  the  purse,  all  the  ex- 
ternal relations,  and  no  inconsiderable  portion  of  the  industry  of 
the  nation,  are  intrusted  to  its  government.  It  can  never  be  pre- 
tended that  these  vast  powers  draw  after  them  others  of  inferior 
importance,  merely  because  they  are  inferior.  Such  an  idea  can 
never  be  advanced.  But  it  may,  with  great  reason,  be  contended, 
that  a  government,  intrusted  with  such  ample  powers,  on  the  due 
execution  of  which  the  happiness  and  prosperity  of  the  nation  so 
vitally  depends,  must  also  be  intrusted  with  ample  means  for  their 
execution.  The  power  being  given,  it  is  the  interest  of  the  nation 
to  facilitate  its  execution.  It  can  never  be  their  interest,  and 
cannot  be  presumed  to  have  been  their  intention,  to  clog  and 
embarrass  its  execution  by  withholding  the  most  appropriate 
means.  Throughout  this  vast  republic,  from  the  St  Croix  to  the 
Gulf  of  Mexico,  from  the  Atlantic  to  the  Pacific,  revenue  is  to  be 
collected  and  expended,  armies  are  to  be  marched  and  supported. 
The  exigencies  of  the  nation  may  require,  that  the  treasure  raised 
in  the  North  should  be  transported  to  the  South,  that  raised  in 
the  East  conveyed  to  the  West,  or  that  this  order  should  be  re- 
versed. Is  that  construction  of  the  constitution  to  be  pref 
which  would  render  these  operations  difficult,  hazardous,  and  ex- 

E.C.L.— i 


18  t  CASES  ON  CONSTITUTIONAL  LAW. 

pensive  ?  Can  we  adopt  that  construction  (unless  the  words  im- 
periously require  it)  which  would  impute  to  the  framers  of  that 
instrument,  when  granting  these  powers  for  the  public  good,  the 
intention  of  impeding  their  exercise  by  withholding  a  choice  of 
means  ?  If,  indeed,  such  be  the  mandate  of  the  constitution,  we 
have  only  to  obey ;  but  that  instrument  does  not  profess  to  enu- 
merate the  means  by  which  the  powers  its  confers  may  be  exe- 
cuted; nor  does  it  prohibit  the  creation  of  a  corporation,  if  the 
existence  of  such  a  being  be  essential  to  the  beneficial  exercise  of 
those  powers.  It  is,  then,  the  subject  of  fair  inquiry,  how  far 
such  means  may  be  employed. 

It  is  not  denied,  that  the  powers  given  to  the  government  imply 
the  ordinary  means  of  execution.  That,  for  example,  of  raising 
revenue,  and  applying  it  to  national  purposes,  is  admitted  to  im- 
ply the  power  of  conveying  money  from  place  to  place,  as  the 
exigencies  of  the  nation  may  require,  and  of  employing  the  usual 
means  of  conveyance.  But  it  is  denied  that  the  government  has 
its  choice  of  means ;  or,  that  it  may  employ  the  most  convenient 
means,  if,  to  employ  them,  it  be  necessary  to  erect  a  corporation. 

On  what  foundation  does  this  argument  rest  ?  On  this  alone : 
The  power  of  creating  a  corporation,  is  one  appertaining  to  sov- 
ereignty, and  is  not  expressly  conferred  on  Congress.  This  is  true. 
But  all  legislative  powers  appertain  to  sovereignty.  The  original 
power  of  giving  the  law  on  any  subject  whatever,  is  a  sovereign 
power;  and  if  the  government  of  the  Union  is  restrained  from 
creating  a  corporation,  as  a  means  for  performing  its  functions, 
on  the  single  reason  that  the  creation  of  a  corporation  is  an  act 
of  sovereignty ;  if  the  sufficiency  of  this  reason  be  acknowledged, 
there  would  be  some  difficulty  in  sustaining  the  authority  of  con- 
gress to  pass  other  laws  for  the  accomplishment  of  the  same 
objects. 

The  government  which  has  a  right  to  do  an  act,  and  has  im- 
posed on  it  the  duty  of  performing  that  act,  must,  according  to 
the  dictates  of  reason,  be  allowed  to  select  the  means ;  and  those 
who  contend  that  it  may  not  select  any  appropriate  means,  that 
one  particular  mode  of  effecting  the  object  is  excepted,  take  upon 
themselves  the  burden  of  establishing  that  exception. 

The  creation  of  a  corporation,  it  is  said,  appertains  to  sov- 
ereignty. This  is  admitted.  But  to  what  portion  of  sovereignty 
does  it  appertain?  Does  it  belong  to  one  more  than  to  another? 
In  America,  the  powers  of  sovereignty  are  divided  between  the 
government  of  the  Union  and  those  of  the  States.  They  are  each 
sovereign,  with  respect  to  the  objects  committed  to  it,  and  neither 


McCULLOCII  v.  STATE  OF  MARYLAND.  19 

sovereign  with  respect  to  the  objects  committed  to  the  other.  We 
cannot  comprehend  that  train  of  reasoning  which  would  maintain, 
that  the  extent  of  power  granted  by  the  people  is  to  be  ascer- 
tained, not  by  the  nature  and  terms  of  the  grant,  but  by  its  date. 
Some  state  constitutions  were  formed  before,  some  since  that  of 
the  United  States.  We  cannot  believe  that  their  relation  to  each 
other  is  in  any  degree  dependent  upon  this  circumstance.  Their 
respective  powers  must,  we  think,  be  precisely  the  same  as  if  they 
had  been  formed  at  the  same  time.  Had  they  been  formed  at  the 
same  time,  and  had  the  people  conferred  on  the  general  govern- 
ment the  power  contained  in  the  constitution,  and  on  the  States 
the  whole  residuum  of  power,  would  it  have  been  asserted  that 
the  government  of  the  Union  was  not  sovereign  with  respect  to 
those  objects  which  were  entrusted  to  it,  in  relation  to  which  its 
law*  were  declared  to  be  supreme  ?  If  this  could  not  have  been 
asserted,  we  cannot  well  comprehend  the  process  of  reasoning 
which  maintains,  that  a  power  appertaining  to  sovereignty  can- 
not be  connected  with  that  vast  portion  of  it  which  is  granted  to 
the  general  government,  so  far  as  it  is  calculated  to  subserve  the 
legitimate  objects  of  that  government.  The  power  of  creating 
a  corporation,  though  appertaining  to  sovereignty,  is  not,  like  the 
power  of  making  war,  or  levying  taxes,  or  of  regulating  com- 
merce, a  great  substantive  and  independent  power,  which  cannot 
be  implied  as  incidental  to  other  powers,  or  used  as  a  means  of 
executing  them.  It  is  never  the  end  for  which  other  powers  are 
exercised,  but  a  means  by  which  other  objects  are  accomplished, 
ontributions  are  made  to  charity  for  the  sake  of  an  incorpo- 
ration, but  a  corporation  is  created  to  administer  the  charity ; 
no  seminary  of  learning  is  instituted  in  order  to  be  incorporated, 
but  the  corporate  character  is  conferred  to  subserve  the  purposes 
of  education.  No  city  was  ever  built  with  the  sole  object  of  being 
incorporated,  but  is  incorporated  as  affording  the  best  means  of 
being  well  governed.  The  power  of  creating  a  corporation  is 
never  used  for  its  own  sake,  but  for  the  purpose  of  effect  in«*  some- 
thing else.  No  sufficient  reason  is,  therefore,  perceived,  why  it 
may  not  pass  as  incidental  to  those  powers  which  are  expressly 
piv.-n,  if  it  be  a  direct  mode  of  executing  them. 

Hut  the  constitution  of  the  United  States  has  not  loft  the  right 
of  congress  to  employ  the  necessary  means,  for  the  execution 
the  powers  conferred  on  the  government,  to  ponornl  reasoning. 
To  its  enumeration  of  powers  is  added  that  of  making  "all  laws 
which  shall  be  necessary  and  proper,  for  carrying  into  execution 
the  foregoing  powers,  and  all  other  powers  vested  by  this  const i- 


20  CASES  ON  CONSTITUTIONAL  LAW. 

tution,  in  the  government  of  the  Unrted  States,  or  in  any  depart- 
ment thereof." 

The  counsel  for  the  State  of  Maryland  have  urged  various  argu- 
ments to  prove  that  this  clause,  though  in  terms  a  grant  of  power, 
is  not  so  in  effect;  but  is  really  restrictive  of  the  general  right, 
which  might  otherwise  be  implied,  of  selecting  means  for  exe- 
cuting the  enumerated  powers. 

In  support  of  this  proposition,  they  have  found  it  necessary  to 
contend,  that  this  clause  was  inserted  for  the  purpose  of  confer- 
ring on  congress  the  power  of  making  laws.  That,  without  it, 
doubts  might  be  entertained  whether  congress  could  exercise  its 
powers  in  the  form  of  legislation. 

But  could  this  be  the  object  for  which  it  was  inserted?  A 
government  is  created  by  the  people,  having  legislative,  executive, 
and  judicial  powers.  Its  legislative  powers  are  vested  in  a  con- 
gress, which  is  to  consist  of  a  senate  and  house  of  representa- 
tives. Each  house  may  determine  the  rule  of  its  proceedings ;  and 
it  is  declared  that  every  bill  which  shall  have  passed  both  houses, 
shall,  before  it  becomes  a  law,  be  presented  to  the  President  of 
the  United  States.  The  7th  section  describes  the  course  of  pro- 
ceedings, by  which  a  bill  shall  become  a  law ;  and,  then,  the  8th 
section  enumerates  the  powers  of  congress.  Could  it  be  necessary 
to  say,  that  a  legislature  should  exercise  legislative  powers,  in  the 
shape  of  legislation?  After  allowing  each  house  to  prescribe  its 
own  course  of  proceeding,  after  describing  the  manner  in  which 
a  bill  should  become  a  law,  would  it  have  entered  into  the  mind 
of  a  single  member  of  the  convention,  that  an  express  power  to 
make  laws  was  necessary  to  enable  the  legislature  to  make  them  ? 
That  a  legislature,  endowed  with  legislative  powers,  can  legislate, 
is  a  proposition  too  self-evident  to  have  been  questioned. 

But  the  argument  on  which  most  reliance  is  placed  is  drawn 
from  the  peculiar  language  of  this  clause.  Congress  is  not  em- 
powered by  it  to  make  all  laws,  which  may  have  relation  to  the 
powers  conferred  on  the  government,  but  only  such  as  may  be 
"necessary  and  proper"  for  carrying  them  into  execution.  The 
word  "necessary"  is  considered  as  controlling  the  whole  sentence, 
and  as  limiting  the  right  to  pass  laws  for  the  execution  of  the 
granted  powers,  to  such  as  are  indispensable,  and  without  which 
the  power  would  be  nugatory.  That  it  excludes  the  choice  of 
means,  and  leaves  to  congress,  in  each  case,  that  only  which  is 
most  direct  and  simple. 

Is  it  true  that  this  is  the  sense  in  which  the  word  "necessary" 
is  always  used  ?  Does  it  always  import  an  absolute  physical  neces- 


McCULLOCH  v.  STATE  OF  MARYLAND.  21 

shy,  so  strong,  that  one  thing,  to  which  another  may  be  termed 
necessary,  cannot  exist  without  that  other!  We  think  it  does  not. 
If  reference  be  had  to  its  use,  in  the  common  affairs  of  the  world, 
or  in  approved  authors,  we  find  that  it  frequently  imports  no 
more  than  that  one  thing  is  convenient,  or  useful,  or  essential  to 
another.  To  employ  the  means  necessary  to  an  end  is  generally 
understood  as  employing  any  means  calculated  to  produce  the 
end,  and  not  as  being  confined  to  those  single  means,  without 
which  the  end  would  be  entirely  unattainable.  Such  is  the  char- 
;i'-t'T  of  human  language,  that  no  word  conveys  to  the  mind,  in 
all  situations,  one  single  definite  idea ;  and  nothing  is  more  com- 
mon than  to  use  words  in  a  figurative  sense.  Almost  all  compo- 
sitions contain  words,  which,  taken  in  their  rigorous  sense,  would 
convey  a  meaning  different  from  that  which  is  obviously  intended. 
It  is  essential  to  just  construction  that  many  words  which  import 
something  excessive,  should  be  understood  in  a  more  mitigated 
sense — in  that  sense  which  common  usage  justifies.  The  word 
"necessary"  is  of  this  description.  It  has  not  a  fixed  character 
peculiar  to  itself.  It  admits  of  all  degrees  of  comparison ;  and  is 
often  connected  with  words,  which  increase  or  diminish  the  im- 
pression the  mind  receives  of  the  urgency  it  imports.  A  thing 
may  be  necessary,  very  necessary,  absolutely  or  indispensably 
necessary.  To  no  mind  would  the  same  idea  be  conveyed  by 
these  several  phrases.  This  comment  on  the  word  is  well  illus- 
trated, by  the  passage  cited  at  the  bar,  from  the  10th  section  of 
the  1st  article  of  the  constitution.  It  is,  we  think,  impossible  to 
compare  the  sentence  which  prohibits  a  State  from  laying  "im- 
posts, or  duties  on  imports  or  exports,  except  what  may  be  abso- 
lutely necessary  for  executing  its  inspection  laws,"  with  that 
which  authorizes  congress  "to  make  all  laws  which  shall  be  neces- 
sary and  proper  for  carrying  into  execution"  the  powers  of  the 
general  government,  without  feeling  a  conviction  that  the  con- 
vention understood  itself  to  change  materially  the  meaning  of 
the  word  ' ' necessary ' '  by  prefixing  the  word  ' ' absolutely. "  This 
word,  then,  like  others,  is  used  in  various  senses;  and,  in  its 
construction,  the  subject,  the  context,  the  intention  of  the  person 
using  them,  are  all  to  be  taken  into  view. 

Let  this  be  done  in  the  case  under  consideration.  The  sul 
is  the  execution 'of  those  great  powers  on  which  the  welfare  of  a 
nation  essentially  depends.  It  must  have  been  the  intention  of 
those  who  gave  these  powers,  to  insure,  as  far  as  human  prudence 
could  insure,  their  beneficial  execution.  This  could  not  be  done 
by  confining  the  choice  of  means  to  such  narrow  limits  are  not  to 


22  CASES  ON  CONSTITUTIONAL  LAW. 

leave  it  in  the  power  of  congress  to  adopt  any  which  might  be 
appropriate,  and  which  were  conducive  to  the  end.  This  pro- 
vision is  made  in  a  constitution  intended  to  endure  for  ages  to 
come,  and,  consequently,  to  be  adapted  to  the  various  crises  of 
human  affairs.  To  have  prescribed  the  means  by  which  govern- 
ment should,  in  all  future  time,  execute  its  powers,  would  have 
been  to  change,  entirely,  the  character  of  the  instrument,  and 
give  it  the  properties  of  a  legal  code.  It  would  have  been  an  un- 
wise attempt  to  provide,  by  immutable  rules,  for  exigencies  which, 
if  foreseen  at  all,  must  have  been  seen  dimly,  and  which  can  be 
best  provided  for  as  they  occur.  To  have  declared  that  the  best 
means  shall  not  be  used,  but  those  alone  without  which  the  power 
given  would  be  nugatory,  would  have  been  to  deprive  the  legisla- 
ture of  the  capacity  to  avail  itself  of  experience,  to  exercise  its 
reason,  and  to  accommodate  its  legislation  to  circumstances.  If 
we  apply  this  principle  of  construction  to  any  of  the  powers  of 
the  government,  we  shall  find  it  so  pernicious  in  its  operation  that 
we  shall  be  compelled  to  discard  it.  The  powers  vested  in  con- 
gress may  certainly  be  carried  into  execution,  without  prescribing 
an  oath  of  office.  The  power  to  exact  this  security  for  the  faith- 
ful performance  of  duty  is  not  given,  nor  is  it  indispensably 
necessary.  The  different  departments  may  be  established;  taxes 
may  be  imposed  and  collected ;  armies  and  navies  may  be  raised 
and  maintained ;  and  money  may  be  borrowed,  without  requiring 
an  oath  of  office.  It  might  be  argued,  with  as  much  plausibility, 
as  other  incidental  powers  have  been  assailed,  that  the  convention 
was  not  unmindful  of  this  subject.  The  oath  which  might  be 
exacted — that  of  fidelity  to  the  constitution — is  prescribed,  and 
no  other  can  be  required.  Yet,  he  would  be  charged  with  insanity 
who  should  contend  that  the  legislature  might  not  superadd  to 
the  oath  directed  by  the  constitution,  such  other  oath  of  office  as 
its  wisdom  might  suggest. 

So,  with  respect  to  the  whole  penal  code  of  the  United  States. 
Whence  arises  the  power  to  punish  in  cases  not  prescribed  by  the 
constitution?  All  admit  that  the  government  may,  legitimately, 
punish  any  violation  of  its  laws ;  and  yet  this  is  not  among  the 
enumerated  powers  of  congress.  The  right  to  enforce  the  ob- 
servance of  law,  by  punishing  its  infraction,  might  be  denied  with 
the  more  plausibility,  because  it  is  expressly  given  in  some  cases. 
Congress  is  empowered  "to  provide  for  the  punishment  of  coun- 
terfeiting the  securities  and  current  coin  of  the  United  States," 
and  ''to  define  and  punish  piracies  and  felonies  committed  on 
the  high  seas,  and  offenses  against  the  law  of  nations."  The 


McCULLOCH  v.  STATE  OF  MARYLAND.  23 

several  powers  of  congress  may  exist,  in  a  very  imperfect  state 
to  be  sure,  but  they  may  exist  and  be  carried  into  execution, 
although  no  punishment  should  be  inflicted  in  cases  where  the 
right  to  punish  is  not  expressly  given. 

Take,  for  example,  the  power  "to  establish  post-offices  and 
post-roads."  This  power  is  executed  by  the  single  act  of  making 
the  establishment.  But  from  this  has  been  inferred  the  power 
and  duty  of  carrying  the  mail  along  the  post-road,  from  one  post- 
office  to  another.  And,  from  this  implied  power,  has  again  been 
inferred  the  right  to  punish  those  who  steal  letters  from  the  post- 
office,  or  rob  the  mail.  It  may  be  said,  with  some  plausibility,  that 
the  right  to  carry  the  mail,  and  to  punish  those  who  rob  it,  is  not 
indispensably  necessary  to  the  establishment  of  a  post-office  and 
post-road.  This  right  is,  indeed,  essential  to  the  beneficial  exer- 
cise of  the  power,  but  not  indispensably  necessary  to  its  exist- 
ence. So,  of  the  punishment  of  the  crimes  of  stealing  or  falsify- 
ing a  record  or  process  of  a  court  of  the  United  States,  or  of  per- 
jury in  such  court.  To  punish  these  offenses  is  certainly  con- 
ducive to  the  due  administration  of  justice.  But  courts  may 
exist,  and  may  decide  the  causes  brought  before  them,  though 
such  crimes  escape  punishment. 

The  baneful  influence  of  this  narrow  construction  on  all  the 
operations  of  the  government,  and  the  absolute  impracticability 
of  maintaining  it  without  rendering  the  government  incompetent 
to  its  great  objects,  might  be  illustrated  by  numerous  examples 
drawn  from  the  constitution  and  from  our  laws.  The  good  sense 
of  the  public  has  pronounced,  without  hesitation,  that  the  power 
of  punishment  appertains  to  sovereignty,  and  may  be  exercised 
whenever  the  sovereign  has  a  right  to  act,  as  incidental  to  his 
constitutional  powers.  It  is  a  means  for  carrying  into  execution 
all  sovereign  powers,  and  may  be  used,  although  not  indispensa- 
bly necessary.  It  is  a  right  incidental  to  the  power,  and  con- 
ducive to  its  beneficial  exercise. 

If  this  limited  construction  of  the  word  "necessary"  must  be 
abandoned  in  order  to  punish,  whence  is  derived  the  rule  which 
would  reinstate  it,  when  the  government  would  carry  its  powers 
into  execution  by  means  not  vindictive  in  their  nature  ?  If  the 
word  "necessary"  means  "needful,"  "requisite,"  "essential," 
"conducive  to,"  in  order  to  let  in  the  power  of  punishment  for 
the  infraction  of  law,  why  is  it  not  equally  comprehenisve  when 
required  to  authorize  the  use  of  means  which  facilitate  the  exe- 
cution of  the  powers  of  government  without  the  infliction  of 
punishment  f 


24  CASES  ON  CONSTITUTIONAL  LAW. 

In  ascertaining  the  sense  in  which  the  word  ''necessary"  is 
used  in  this  clause  of  the  constitution,  we  may  derive  some  aid 
from  that  with  which  it  is  associated.  Congress  shall  have  power 
"to  make  all  laws  which  shall  be  necessary  and  properly  to  carry 
into  execution"  the  powers  of  the  government.  If  the  word 
' '  necessary ' '  was  used  in  that  strict  and  rigorous  sense  for  which 
the  counsel  for  the  State  of  Maryland  contend,  it  would  be  an 
extraordinary  departure  from  the  usual  course  of  the  human 
mind,  as  exhibited  in  composition,  to  add  a  word,  the  only  possi- 
ble effect  of  which  is  to  qualify  that  strict  and  rigorous  meaning ; 
to  present  to  the  mind  the  idea  of  some  choice  of  means  of  legisla- 
tion not  straitened  and  compressed  within  the  narrow  limits  for 
which  gentlemen  contend. 

But  the  argument  which  most  conclusively  demonstrates  the 
error  of  the  construction  contended  for  by  the  counsel  for  the 
State  of  Maryland,  is  founded  on  the  intention  of  the  convention, 
as  manifested  in  the  whole  clause.  To  waste  time  and  argument 
in  proving  that,  without  it,  congress  might  carry  its  powers  into 
execution,  would  be  not  much  less  idle  than  to  hold  a  lighted 
taper  to  the  sun.  As  little  can  it  be  required  to  prove,  that  in  the 
absence  of  this  clause,  congress  would  have  some  choice  of  means. 
That  it  might  employ  those  which,  in  its  judgment,  would  most 
advantageously  effect  the  object  to  be  accomplished.  That  any 
means  adapted  to  the  end,  any  means  which  tended  directly  to 
the  execution  of  the  constitutional  powers  of  the  government, 
were  in  themselves  constitutional.  This  clause,  as  construed  by 
the  State  of  Maryland,  would  abridge  and  almost  annihilate  this 
useful  and  necessary  right  of  the  legislature  to  select  its  means. 
That  this  could  not  be  intended,  is,  we  should  think,  had  it  not 
been  already  controverted,  too  apparent  for  controversy.  We 
think  so  for  the  following  reasons: — 

1.  The  clause  is  placed  among  the  powers  of  congress,  not 
among  the  limitations  on  those  powers. 

2.  Its  terms  purport  to  enlarge,  not  to  diminish  the  powers 
vested  in  the  government.    It  purports  to  be  an  additional  power, 
not  a  restriction  on  those  already  granted.    No  reason  has  been 
or  can  be  assigned  for  thus  concealing  an  intention  to  narrow  the 
discretion  of  the  national  legislature,  under  words  which  purport 
to  enlarge  it.  The  f  ramers  of  the  constitution  wished  its  adoption, 
and  well  knew  that  it  would  be  endangered  by  its  strength,  not  by 
its  weakness.    Had  they  been  capable  of  using  language  which 
would  convey  to  the  eye  one  idea,  and  after  deep  reflection,  im- 
press on  the  mind  another,  they  would  rather  have  disguised  the 


McCULLOCH  v.  STATE  OF  MARYLAND.  25 

grant  of  power,  than  its  limitation.  If  then,  their  intention  had 
been,  by  this  clause,  to  restrain  the  free  use  of  means  which  might 
otherwise  have  been  implied,  that  intention  would  have  been  in- 
serted in  another  place,  and  would  have  been  expressed  in  terms 
resembling  these:  "In  carrying  into  execution  the  foregoing 
powers,  and  all  others,"  &c.,  "no  laws  shall  be  passed  but  such 
as  are  necessary  and  proper. ' '  Had  the  intention  been  to  make* 
this  clause  restrictive,  it  would  unquestionably  have  been  so  in 
form  as  well  as  in  effect. 

The  result  of  the  most  careful  and  attentive  consideration  be- 
stowed upon  this  clause  is,  that  if  it  does  not  enlarge,  it  cannot 
be  construed  to  restrain  the  powers  of  congress,  or  to  impair  the 
right  of  the  legislature  to  exercise  its  best  judgment  in  the  selec- 
tion of  measures,  to  carry  into  execution  the  constitutional  pow- 
ers of  the  government.  If  no  other  motive  for  its  insertion  can 
be  suggested,  a  sufficient  one  is  found  in  the  desire  to  remove  all 
doubts  respecting  the  right  to  legislate  on  that  vast  mass  of  inci- 
dental powers  which  must  be  involved  in  the  constitution,  if  that 
instrument  be  not  a  splendid  bauble. 

We  admit,  as  all  must  admit,  that  the  powers  of  the  govern- 
ment are  limited,  and  that  its  limits  are  not  to  be  transcended. 
But  we  think  the  sound  construction  of  the  constitution  must 
allow  to  the  national  legislature  that  discretion,  with  respect  to 
the  means  by  which  the  powers  it  confers  are  to  be  carried  into 
it  ion,  which  will  enable  that  body  to  perform  the  high  duties 
assigned  to  it,  in  the  manner  most  beneficial  to  the  people.  Let 
the  end  be  legitimate,  let  it  be  within  the  scope  of  the  constitu- 
tion, and  all  means  which  are  appropriate,  which  are  plainly 
adapted  to  that  end,  which  are  not  prohibited,  but  consist  with 
the  letter  and  spirit  of  the  constitution,  are  constitutional. 

That  a  corporation  must  be  considered  as  a  means  not  less 
usual,  not  of  higher  dignity,  not  more  requiring  a  particular 
specification  than  other  means,  has  been  sufficiently  proved.  If 
we  look  to  the  origin  of  corporations,  to  the  manner  in  which 
they  have  been  framed  in  that  government,  from  which  we  have 
derived  most  of  our  legal  principles  and  ideas,  or  to  the  uses  to 
which  they  have  been  applied,  we  find  no  reason  to  suppose  that 
u  constitution,  omitting,  and  wisely  omitting,  to  enumerate  all  the 
means  for  carrying  into  execution  the  great  powers  vested  in  gov- 
ernment, ought  to  have  specified  this.  Had  it  been  intended  to 
grant  this  power  as  one  which  should  be  distinct  and  independ- 
ent, to  be  exercised  in  any  case  whatever,  it  would  have  found  a 
place  among  the  enumerated  powers  of  the  government.  But 


26  CASES  ON  CONSTITUTIONAL  LAW. 

being  considered  merely  as  a  means,  to  be  employed  only  for  the 
purpose  of  carrying  into  execution  the  given  powers,  there  could 
be  no  motive  for  particularly  mentioning  it. 

The  propriety  of  this  remark  would  seem  to  be  generally  ac- 
knowledged by  the  universal  acquiescence  in  the  construction 
which  has  been  uniformly  put  on  the  3d  section  of  the  4th  arti- 
cle of  the  constitution.  The  power  to  "make  all  needful  rules 
and  regulations  respecting  the  territory  or  other  property  belong- 
ing to  the  United  States,"  is  not  more  comprehensive,  than  the 
power  ':to  make  all  laws  which  shall  be  necessary  and  proper  for 
carrying  into  execution ' '  the  powers  of  the  government.  Yet  all 
admit  the  constitutionality  of  a  territorial  government,  which  is 
a  corporate  body. 

If  a  corporation  may  be  employed  indiscriminately  with  other 
means  to  carry  into  execution  the  powers  of  the  government,  no 
particular  reason  can  be  assigned  for  excluding  the  use  of  a  bank, 
if  required  for  its  fiscal  operations.  To  use  one,  must  be  within 
the  discretion  of  congress,  if  it  be  an  appropriate  mode  of  exe- 
cuting the  powers  of  government.  That  it  is  a  convenient,  a  use- 
ful, and  essential  instrument  in  the  prosecution  of  its  fiscal  opera- 
tions, is  not  now  a  subject  of  controversy.  All  those  who  have 
been  concerned  in  the  administration  of  our  finances,  have  con- 
curred in  representing  its  importance  and  necessity;  and  so 
strongly  have  they  been  felt,  that  statesmen  of  the  first  class, 
whose  previous  opinions  against  it  had  been  confirmed  by  every 
circumstance  which  can  fix  the  human  judgment,  have  yielded 
those  opinions  to  the  exigencies  of  the  nation.  Under  the  con- 
federation, congress  justifying  the  measure  by  its  necessity, 
transcended,  perhaps,  its  powers  to  obtain  the  advantage  of  a 
bank;  and  our  own  legislation  attests  the  universal  conviction 
of  the  utility  of  this  measure.  The  time  has  passed  away  when 
it  can  be  necessary  to  enter  into  any  discussion  in  order  to  prove 
the  importance  of  this  instrument,  as  a  means  to  effect  the  legiti- 
mate objects  of  the  government. 

But  were  its  necessity  less  apparent,  none  can  deny  its  being  an 
appropriate  measure ;  and  if  it  is,  the  degree  of  its  necessity,  as 
has  been  very  justly  observed,  is  to  be  discussed  in  another  place. 
Should  congress,  in  the  execution  of  its  powers,  adopt  measures 
which  are  prohibited  by  the  constitution;  or  should  congress, 
under  the  pretext  of  executing  its  powers,  pass  laws  for  the 
accomplishment  of  objects  not  intrusted  to  the  government,  it 
would  become  the  painful  duty  of  this  tribunal,  should  a  case 
requiring  such  a  decision  come  before  it,  to  say  that  such  an  act 


McCULLOCH  v.  STATE  OP  MARYLAND.  27 

was  not  the  law  of  the  land.  But  where  the  law  is  not  prohibited, 
and  is  really  calculated  to  effect  any  of  the  objects  intrust e.i  to 
the  government,  to  undertake  here  to  inquire  into  the  degree  of 
its  necessity,  would  be  to  pass  the  line  which  circumscribes  the 
judicial  department,  and  to  tread  on  legislative  ground.  This 
court  disclaims  all  pretensions  to  such  a  power. 

After  this  declaration,  it  can  scarcely  be  necessary  to  say,  that 
the  existence  of  state  banks  can  have  no  possible  influence  on  the 
question.  No  trace  is  to  be  found  in  the  constitution  of  an  inten- 
tion to  create  a  dependence  of  the  government  of  the  Union  on 
those  of  the  States,  for  the  execution  of  the  great  powers  assigned 
to  it.  Its  means  are  adequate  to  its  ends;  and  on  those  means 
alone  was  it  expected  to  rely  for  the  accomplishment  of  its  ends. 
To  impose  on  it  the  necessity  of  resorting  to  means  which  it  can- 
not control,  which  another  government  may  furnish  or  withhold, 
would  render  its  course  precarious,  the  result  of  its  measures  un- 
certain, and  create  a  dependence  on  other  governments,  which 
might  disappoint  its  most  important  designs,  and  is  incompatible 
with  the  language  of  the  constitution.  But  were  it  otherwise,  the 
choice  of  means  implies  a  right  to  choose  a  national  bank  in  pref- 
erence to  state  banks,  and  congress  alone  can  make  the  election. 

After  the  most  deliberate  consideration,  it  is  the  unanimous 
and  decided  opinion  of  this  court,  that  the  act  to  incorporate 
the  Bank  of  the  United  States  is  a  law  made  in  pursuance  of  the 
constitution,  and  is  a  part  of  the  supreme  law  of  the  land. 

The  branches,  proceeding  from  the  same  stock,  and  being  con- 
ducive to  the  complete  accomplishment  of  the  object,  are  equally 
constitutional.  It  would  have  been  unwise  to  locate  them  in  the 
charter,  and  it  would  be  unnecessarily  inconvenient  to  employ  the 
legislative  power  in  making  those  subordinate  arrangements.  The 
great  duties  of  the  bank  are  prescribed;  those  duties  require 
branches,  and  the  bank  itself  may,  we  think,  be  safely  trusted 
with  the  selection  of  places  where  those  branches  shall  be  fixed; 
reserving  always  to  the  government  the  right  to  require  that  a 
branch  shall  be  located  where  it  may  be  deemed  necessary. 

It  being  the  opinion  of  the  court  that  the  act  incorporating  the 
bank  is  constitutional;  and  that  the  power  of  establishing  a 
branch  in  the  State  of  Maryland  might  be  properly  exercised  by 
the  bank  itself,  we  proceed  to  inquire: — 

2.  Whether  the  State  of  Maryland  may,  without  violating  the 
constitution,  tax  that  branch?  .  .  .  [This  part  of  the  opin- 
ion is  given  post,  page  212.] 

We  are  unanimously  of  opinion,  that  the  law  passed  by  the 


28  CASES  ON  CONSTITUTIONAL  LAW. 

legislature  of  Maryland,  imposing  a  tax  on  the  Bank  of  the 
United  States,  is  unconstitutional  and  void.     .     .     . 

NOTE. — The  doctrine  of  implied  powers  as  worked  out  by  Marshall  in 
McCulloch  v.  Maryland  has  been  so  unreservedly  accepted  that  it  has  now 
become  almost  axiomatic  and  has  been  affirmed  in  scores  of  decisions.  The 
essential  principles  upon  which  Marshall  based  his  argument  had  been  stated 
by  Hamilton  in  his  Opinion  on  the  Constitutionality  of  the  United  States 
Bank,  a  paper  with  which  Marshall  was  familiar.  In  this  paper  Hamilton 
had  said: 

Every  power  vested  in  a  government  is  in  its  nature  sovereign, 
and  includes  by  force  of  the  term  a  right  to  employ  all  the  means 
requisite  and  fairly  applicable  to  the  attainment  of  the  ends  of 
such  power,  and  which  are  not  precluded  by  restrictions  and  excep- 
tions specified  in  the  Constitution. 

Hamilton,  WorTcs  (Lodge,  Ed.)  Ill,  181. 

And  again,  in  discussing  ' '  a  criterion  of  what  is  constitutional  and  of  what 
is  not  so,"  Hamilton  said: 

This  criterion  is  the  end,  to  which  the  measure  relates  as  a  means. 
If  the  end  be  clearly  comprehended  within  any  of  the  specified 
powers,  and  if  the  measure  have  an  obvious  relation  to  that  end, 
and  is  not  forbidden  by  any  particular  provision  of  the  Constitution, 
it  may  safely  be  deemed  to  come  within  the  compass  of  the  national 
authority. 

16.,  Ill,  192. 

No  other  opinion  of  the  Supreme  Court  has  been  so  much  praised  as  has 
that  of  Marshall  in  McCulloch  v.  Maryland.  A  most  competent  critic  has 
said: 

If  we  regard  at  once  the  greatness  of  the  questions  at  issue  in 
the  particular  case,  the  influence  of  the  opinion,  and  the  large 
method  and  clear  and  skillful  manner  in  which  it  is  worked  out, 
there  is  nothing  so  fine  as  the  opinion  in  McCulloch  v.  Maryland. 

Thayer,  John  Marshall,  85. 


IN  RE  NEAGLE. 

SUPREME  COURT  OF  THE  UNITED  STATES.    1890. 
135  U.  S.  1;  34  Lawyers'  Ed.  55. 

Appeal  from  the  Circuit  Court  of  the  United  States  for  the 
Northern  District  of  California. 

[When  Mr.  Justice  Field,  of  the  Supreme  Court  of  the  United 
States,  was  travelling  on  circuit  in  California,  there  was  reason 
to  believe  that  one  Terry,  a  suitor  in  Justice  Field's  court, 
would  attack  him  and  do  him  bodily  harm.  Therefore,  by  direc- 
tion of  the  Attorney  General  of  the  United  States,  David  Neagle, 


IN  RE  NEAGLE.  29 

a  deputy  United  States  marshal,  was  instructed  to  accompany 
Justice  Field  for  his  protection.  While  on  the  way  from  Los 
Angeles  to  San  Francisco  for  the  purpose  of  holding  court, 
Justice  Field  was  attacked  by  Terry,  whereupon  Neagle  shot 
and  killed  Terry.  Having  been  arrested  by  officers  of  the  State 
of  California  charged  with  the  murder  of  Terry,  Neagle  sued 
out  a  writ  of  habeas  corpus  in  the  United  States  Circuit  Court 
on  the  ground  that  he  was  in  custody  for  an  act  done  in  pur- 
suance of  the  laws  of  the  United  States.  The  court  having  or- 
dered his  discharge,  the  sheriff  having  Neagle  in  custody  appealed 
from  this  order  to  the  Supreme  Court  of  the  United  States.] 

Ma.  JUSTICE  MILLER  .  .  .  delivered  the  opinion  of  the 
court.  .  .  . 

These  are  the  material  circumstances  produced  in  evidence  be- 
fore the  Circuit  Court  on  the  hearing  of  this  habeas  corpus  case. 
It  is  but  a  short  sketch  of  a  history  which  is  given  in  over  five 
hundred  pages  in  the  record,  but  we  think  it  is  sufficient  to  enable 
us  to  apply  the  law  of  the  case  to  the  question  before  us.  With- 
out a  more  minute  discussion  of  this  testimony,  it  produces  upon 
us  the  conviction  of  a  settled  purpose  on  the  part  of  Terry  and 
his  wife,  amounting  to  a  conspiracy,  to  murder  Justice  Field. 
And  we  are  quite  sure  that  if  Neagle  had  been  merely  a  brother 
or  a  friend  of  Judge  Field,  travelling  with  him,  and  aware  of  all 
the  previous  relations  of  Terry  to  the  Judge, — as  he  was,— of  his 
bitter  animosity,  his  declared  purpose  to  have  revenge  even  to 
the  point  of  killing  him,  he  would  have  been  justified  in  what  he 
did  in  defense  of  Mr.  Justice  Field's  life,  and  possibly  of  his  own. 

But  such  a  justification  would  be  a  proper  subject  for  consid- 
eration on  a  trial  of  the  case  for  murder  in  the  courts  of  the  State 
of  California,  and  there  exists  no  authority  in  the  courts  of  the 
United  States  to  discharge  the  prisoner  while  held  in  custody  by 
the  State  authorities  for  this  offence,  unless  there  be  found  in  aid 
of  the  defence  of  the  prisoner  some  element  of  power  and  author- 
ity asserted  under  the  government  of  the  United  States. 

This  element  is  said  to  be  found  in  the  facts  that  Mr.  Justice 
Field,  when  attacked,  was  in  the  immediate  discharge  of  his  duty 
as  judge  of  the  Circuit  Courts  of  the  United  States  within  Cali- 
fornia ;  that  the  assault  upon  him  grew  out  of  the  animosity  of 
Terry  and  wife,  arising  out  of  the  previous  discharge  of  his  duty 
as  circuit  justice  in  the  case  for  which  they  were  committed  for 
contempt  of  court;  and  that  the  deputy  marshal  of  the  United 
States,  who  killed  Terry  in  defence  of  Field's  life,  was  charged 


30  CASES  ON  CONSTITUTIONAL  LAW. 

with  a  duty  under  the  law  of  the  United  States  to  protect  Field 
from  the  violence  which  Terry  was  inflicting,  and  which  was  in- 
tended to  lead  to  Field's  death. 

To  the  inquiry  whether  this  proposition  is  sustained  by  law  and 
the  facts  which  we  have  recited,  we  now  address  ourselves.  .  .  . 

We  have  no  doubt  that  Mr.  Justice  Field  when  attacked  by 
Terry  was  engaged  in  the  discharge  of  his  duties  as  Circuit  Jus- 
tice of  the  Ninth  Circuit,  and  was  entitled  to  all  the  protection 
under  those  circumstances  which  the  law  could  give  him. 

It  is  urged,  however,  that  there  exists  no  statute  authorizing 
any  such  protection  as  that  which  Neagle  was  instructed  to  give 
Judge  Field  in  the  present  case,  and  indeed  no  protection  what- 
ever against  a  vindictive  or  malicious  assault  growing  out  of  the 
faithful  discharge  of  his  official  duties,  and  that  the  language 
of  section  753  of  the  Revised  Statutes,  that  the  party  seeking  the 
benefit  of  the  writ  of  habeas  corpus  must  in  this  connection  show 
that  he  is  "in  custody  for  an  act  done  or  omitted  in  pursuance 
of  a  law  of  the  United  States, ' '  makes  it  necessary  that  upon  this 
occasion  it  should  be  shown  that  the  act  for  which  Neagle  is  im- 
prisoned was  done  by  virtue  of  an  act  of  Congress.  It  is  not  sup- 
posed that  any  special  act  of  Congress  exists  which  authorizes 
the  marshals  or  deputy  marshals  of  the  United  States  in  express 
terms  to  accompany  the  judges  of  the  Supreme  Court  through 
their  circuits,  and  act  as  a  body-guard  to  them,  to  defend  them 
against  malicious  assaults  against  their  persons.  But  we  are  of 
opinion  that  this  view  of  the  statute  is  an  unwarranted  restric- 
tion of  the  meaning  of  a  law  designed  to  extend  in  a  liberal  man- 
ner the  benefit  of  the  writ  of  habeas  corpus  to  persons  imprisoned 
for  the  performance  of  their  duty.  And  we  are  satisfied  that  if 
it  was  the  duty  of  Neagle,  under  the  circumstances,  a  duty  which 
could  only  arise  under  the  laws  of  the  United  States,  to  defend 
Mr.  Justice  Field  from  a  murderous  attack  upon  him,  he  brings 
himself  within  the  meaning  of  the  section  we  have  recited.  This 
view  of  the  subject  is  confirmed  by  the  alternative  provision,  that 
he  must  be  in  custody  ' '  for  an  act  done  or  omitted  in  pursuance 
of  a  law  of  the  United  States  or  of  an  order,  process,  or  decree  of 
a  court  or  judge  thereof,  or  is  in  custody  in  violation  of  the  Con- 
stitution or  of  a  law  or  treaty  of  the  United  States. ' ' 

In  the  view  we  take  of  the  Constitution  of  the  United  States, 
any  obligation  fairly  and  properly  inferrible  from  that  instru- 
ment, or  any  duty  of  the  marshal  to  be  derived  from  the  general 
scope  of  his  duties  under  the  laws  of  the  United  States,  is ' '  a  law ' ' 
within  the  meaning  of  this  phrase.  It  would  be  a  great  reproach 


IN  RENE  AC,  I.  K.  31 

to  the  system  of  government  of  the  United  States,  declared  to  be 
within  its  sphere  sovereign  ami  supreme,  if  there  is  to  be  found 
within  the  domain  of  its  powers  no  means  of  protecting  the 
judges,  in  the  conscientious  and  faithful  discharge  of  their  duties, 
from  the  malice  and  hatred  of  those  upon  whom  their  judgments 
may  operate  unfavorably.  .  .  . 

Where,  then,  are  we  to  look  for  the  protection  which  we  have 
shown  Judge  Field  was  entitled  to  when  engaged  in  the  discharge 
of  his  official  duties?  Not  to  the  courts  of  the  United  St. 
because,  as  has  been  more  than  once  said  in  this  court,  in  the 
division  of  the  powers  of  government  between  the  three  great 
departments,  executive,  legislative  and  judicial,  the  judicial  is  the 
weakest  for  the  purposes  of  self-protection  and  for  the  enforce- 
ment of  the  powers  which  it  exercises.  The  ministerial  officers 
through  whom  its  commands  must  be  executed  are  marshals  of 
the  United  States,  and  belong  emphatically  to  the  executive  de- 
partment of  the  government.  They  are  appointed  by  the  Presi- 
dent, with  the  advice  and  consent  of  the  Senate.  They  are  remov- 
able from  office  at  his  pleasure.  They  are  subjected  by  act  of 
Congress  to  the  supervision  and  control  of  the  Department  of 
Justice,  in  the  hands  of  one  of  the  cabinet  officers  of  the  Presi- 
dent, and  their  compensation  is  provided  by  acts  of  Congress. 
The  same  may  be  said  of  the  district  attorneys  of  the  United 
States,  who  prosecute  and  defend  the  claims  of  the  government 
in  the  courts. 

The  legislative  branch  of  the  government  can  only  protect 
the  judicial  officers  by  the  enactment  of  laws  for  that  purpose, 
and  the  argument  we  are  now  combating  assumes  that  no  such 
law  has  been  passed  by  Congress. 

If  we  turn  to  the  executive  department  of  the  government,  we 
find  a  very  different  condition  of  affairs.  The  Constitution,  sec- 
tion 3,  article  2,  declares  that  the  President  "shall  take  care  that 
the  laws  be  faithfully  executed,"  and  he  is  provided  with  the 
means  of  fulfilling  this  obligation  by  his  authority  to  commission 
all  the  officers  of  the  United  States,  and,  by  and  with  the  advice 
and  consent  of  the  Senate,  to  appoint  the  most  important  of  them 
and  to  fill  vacancies.  He  is  declared  to  be  commander  in-chief 
of  the  army  and  navy  of  the  United  States.  The  duties  which 
are  thus  imposed  upon  him  he  is  further  enabled  to  perform  by 
the  recognition  in  the  Constitution,  and  the  creation  by  acts  of 
Congress,  of  executive  departments,  which  have  varied  in  num- 
ber from  four  or  five  to  seven  or  eight,  the  heads  of  which  are 
familiarly  called  cabinet  ministers.  These  aid  him  in  the  per- 


32  CASES  ON  CONSTITUTIONAL  LAW. 

formance  of  the  great  duties  of  his  office,  and  represent  him  in  a 
thousand  acts  to  which  it  can  hardly  be  supposed  his  personal 
attention  is  called,  and  thus  he  is  enabled  to  fulfill  the  duty  of 
his  great  department,  expressed  in  the  phrase  that  "he  shall  take 
care  that  the  laws  be  faithfully  executed." 

Is  this  duty  limited  to  the  enforcement  of  acts  of  Congress  or 
of  treaties  of  the  United  States  according  to  their  express  terms, 
or  does  it  include  the  -rights,  duties  and  obligations  growing  out 
of  the  Constitution  itself,  our  international  relations,  and  all  the 
protection  implied  by  the  nature  of  the  government  under  the 
Constitution?  .  .  . 

We  cannot  doubt  the  power  of  the  President  to  take  measures 
for  the  protection  of  a  judge  of  one  of  the  courts  of  the  United 
States,  who,  while  in  the  discharge  of  the  duties  of  his  office,  is 
threatened  with  a  personal  attack  which  may  probably  result  in 
his  death,  and  we  think  it  clear  that  where  this  protection  is  to  be 
afforded  through  the  civil  power,  the  Department  of  Justice  is 
the  proper  one  to  set  in  motion  the  necessary  means  of  protection. 
The  correspondence  already  cited  in  this  opinion  between  the 
marshal  of  the  Northern  District  of  California,  and  the  Attorney- 
General,  and  the  district  attorney  of  the  United  States  for  that 
district,  although  prescribing  no  very  specific  mode  of  affording 
this  protection  by  the  Attorney-General,  is  sufficient,  we  think, 
to  warrant  the  marshal  in  taking  the  steps  which  he  did  take,  in 
making  the  provision  which  he  did  make,  for  the  protection  and 
defence  of  Mr.  Justice  Field. 

But  there  is  positive  law  investing  the  marshals  and  their 
deputies  with  powers  which  not  only  justify  what  Marshal  Neagle 
did  in  this  matter,  but  which  imposed  it  upon  him  as  a  duty.  In 
chapter  fourteen  of  the  Revised  Statutes  of  the  United  States, 
which  is  devoted  to  the  appointment  and  duties  of  the  district 
attorneys,  marshals,  and  clerks  of  the  courts  of  the  United  States, 
section  788  declares: 

' '  The  marshals  and  their  deputies  shall  have,  in  each  State,  the 
same  powers,  in  executing  the  laws  of  the  United  States,  as  the 
sheriffs  and  their  deputies  in  such  State  may  have,  by  law,  in 
executing  the  laws  thereof. ' ' 

If,  therefore,  a  sheriff  of  the  State  of  California  was  author- 
ized to  do  in  regard  to  the  laws  of  California  what  Neagle  did, 
that  is,  if  he  is  authorized  to  keep  the  peace,  to  protect  a  judge 
from  assault  and  murder,  then  Neagle  was  authorized  to  <?.o  the 
same  thing  in  reference  to  the  laws  of  the  United  States.  .  .  . 

That  there  is  a  peace  of  the  United  States ;  that  a  man  assault- 


IN  RE  NEAGLE.  33 

ing  a  judge  of  the  United  States  while  in  the  discharge  of  his 
duties  violates  that  peace;  that  in  such  case  the  marshal  of  the 
United  States  stands  in  the  same  relation  to  the  peace  of  the 
United  States  which  the  sheriff  of  the  county  does  to  the  peace 
of  the  State  of  California ;  are  questions  too  clear  to  need  argu- 
ment to  prove  them.  That  it  would  be  the  duty  of  a  sheriff,  if 
one  had  been  present  at  this  assault  by  Terry  upon  Judge  Field, 
to  prevent  this  breach  of  the  peace,  to  prevent  this  assault,  to 
prevent  the  murder  which  was  contemplated  by  it,  cannot  be 
doubted.  And  if,  in  performing  this  duty,  it  became  necessary 
for  the  protection  of  Judge  Field,  or  of  himself,  to  kill  Terry, 
in  a  case  where,  like  this,  it  was  evidently  a  question  of  the 
choice  of  who  should  be  killed,  the  assailant  and  violator  of  the 
law  and  disturber  of  the  peace,  or  the  unoffending  man  who  was 
in  his  power,  there  can  be  no  question  of  the  authority  of  the 
sheriff  to  have  killed  Terry.  So  the  marshal  of  the  United  States, 
charged  with  the  duty  of  protecting  and  guarding  the  judge  of 
the  United  States  court  against  this  special  assault  upon  his  per- 
son and  his  life,  being  present  at  the  critical  moment,  when 
prompt  action  was  necessary,  found  it  to  be  his  duty,  a  duty 
which  he  had  no  liberty  to  refuse  to  perform,  to  take  the  steps 
which  resulted  in  Terry's  death.  This  duty  was  imposed  on  him 
by  the  section  of  the  Revised  Statutes  which  we  have  cited,  in 
connection  with  the  powers  conferred  by  the  State  of  California 
upon  its  peace  officers,  which  become,  by  this  statute,  in  proper 
cases,  transferred  as  duties  to  the  marshals  of  the  United  States. 

The  result  at  which  we  have  arrived  upon  this  examination  is, 
that  in  the  protection  of  the  person  and  the  life  of  Mr.  Justice 
Fit  Id  while  in  the  discharge  of  his  official  duties,  Neagle  was  au- 
thorized to  resist  the  attack  of  Terry  upon  him ;  that  Neagle  was 
t.  in  the  belief  that  without  prompt  action  on  his  part  the 
assault  of  Terry  upon  the  judge  would  have  ended  in  the  death 
of  tiie  latter;  that  such  being  his  well-founded  belief,  he  was  jus- 
tified in  taking  the  life  of  Terry,  as  the  only  means  of  prevent- 
ing the  death  of  the  man  who  was  intended  to  be  his  victim ;  that 
in  taking  the  life  of  Terry,  under  the  circumstances,  he  was  acting 
under  the  authority  of  the  law  of  the  United  States,  and  was  jus- 
tified in  so  doing;  and  that  he  is  not  liable  to  answer  in  the  courts 
of  California  on  account  of  his  part  in  that  transaction. 

We  therefore  affirm  the  judgment  of  the  Circuit  Court  author- 
izing his  discharge  from  the  custody  of  the  sheriff  of  San  Joaquin 
County, 

B.CU— * 


34  CASES  ON  CONSTITUTIONAL  LAW. 

MR.  JUSTICE  LAMAR  (with  whom  concurred  MR.  CHIEF  JUSTICE 
FULLER)  dissenting.     .     .     . 

NOTE. — The  inherent  powers  of  the  Federal  Government  should  be  dis- 
tinguished from  its  implied  powers.  The  latter  are  always  derived  from  an 
express  grant.  The  former  are  involved  in  the  very  nature  of  the  government 
and  the  exigencies  of  the  situation.  The  argument  upon  which  they  are 
founded  was  thus  expressed  in  1785  by  James  Wilson,  afterwards  a  Justice 
of  the  Supreme  Court  of  the  United  States : 

Though  the  United  States  in  Congress  assembled  derive  from  the 
particular  States  no  power,  jurisdiction,  or  right  which  is  not  ex- 
pressly delegated  by  the  Constitution,  it  does  not  then  follow  that 
the  United  States  in  Congress  have  no  other  powers,  jurisdiction,  or 
rights,  than  those  delegated  by  the  particular  States.  The  United 
States  have  general  rights,  general  powers,  and  general  obligations, 
not  derived  from  any  particular  States,  nor  from  all  the  particular 
States  taken  separately;  but  resulting  from  the  union  of  the  whole 
.  .  .  .  To  many  purposes  the  United  States  are  to  be  considered 
as  one  undivided,  independent  nation;  and  as  possessed  of  all  the 
rights,  powers  and  properties  by  the  law  of  nations  incident  to  such. 
Whenever  an  object  occurs,  to  the  direction  of  which  no  particular 
State  is  competent,  the  management  of  it  must  of  necessity  belong 
to  the  United  States  in  Congress  assembled.  There  are  many  objects 
of  this  extended  nature. 

Wilson,  Works   (Andrews,  Ed.),  I,  557. 

The  same  idea  was  expressed  by  Alexander  Hamilton,  in  his  Opinion  on 
the  National  Bank  which  he  submitted  to  President  Washington.  He  said: 

It  is  not  denied  that  there  are  implied,  as  well  as  express  powers, 
and  that  the  former  are  as  effectually  delegated  as  the  latter.  And 
for  the  sake  of  accuracy  it  shall  be  mentioned  that  there  is  another 
class  of  powers,  which  may  be  properly  denominated  resulting 
powers.  It  will  not  be  doubted  that  if  the  United  States  should 
make  a  conquest  of  any  of  the  territories  of  its  neighbors,  they 
would  possess  sovereign  jurisdiction  over  the  conquered  territory. 
This  would  be  rather  a  result  from  the  whole  mass  of  the  powers  of 
the  government,  and  from  the  nature  of  political  society,  than  a 
consequence  of  either  of  the  powers  specially  enumerated. 

Hamilton,  Works  (Lodge,  Ed.),  Ill,  184. 

With  this  should  be  compared  the  language  used  by  Mr.  Justice  Bradley 
in  his  concurring  opinion  in  The  Legal  Tender  Cases  (1871),  12  Wallace, 
457,  555,  556: 

The  Constitution  of  the  United  States  established  a  government, 
and  not  a  league,  compact  or  partnership  ....  As  a 
government  it  was  invested  with  all  the  attributes  of  sovereignty 
.  .  .  .  The  United  States  is  not  only  a  government,  but  it  is  a 
National  government,  and  the  only  government  in  this  country  that 
has  the  character  of  nationality  ....  Such  being  the  char- 


FONG  YUE  TING  v.  UNITED  STATES.  35 

actor  of  the  General  government,  it  seems  to  be  a  self -evident  propo- 
sition that  it  is  invested  with  all  those  inherent  and  implied  powers 
which,  at  the  time  of  adopting  the  Constitution,  were  generally 
considered  to  belong  to  every  government  as  such,  and  as  being 
essential  to  the  exercise  of  its  functions. 

To  the  same  effect  is  the  language  of  Mr.  Justice  Miller  in  United  States 
v.  Kagama  (1886),  118  U.  8.  375: 

The  power  of  Congress  to  organize  territorial  governments,  and 
make  laws  for  their  inhabitants,  arises  not  so  much  from  the  clause 
in  the  Constitution  in  regard  to  disposing  of  and  making  rules  and 
regulations  concerning  the  territory  and  other  property  of  the 
United  States,  as  from  the  ownership  of  the  country  in  which  its 
territories  are,  and  the  right  of  exclusive  sovereignty  which  must 
exist  in  the  National  Government,  and  can  be  found  nowhere  else. 

In  a  later  case,  however,  when  this  doctrine  was  urged  upon  the  Supreme 
Court,  it  was  expressly  repudiated.  See  Kansas  v.  Colorado  (1907),  206  U.  3. 
46.  The  whole  subject  is  well  discussed  in  Willoughby,  The  Constitutional 
Law  of  the  United  States,  I,  49  seq.,  and  in  Tiedeman,  The  Unwritten  Con- 
stitution of  the  United  States. 


FONG  YUE  TING  v.  UNITED  STATES. 

WONG  QUAN  v.  UNITED  STATES. 

LEE  JOE  v.  UNITED  STATES. 

SUPREME  COURT  OF  THE  UNITED  STATES.     1893. 
149  U.  8.  698;  37  Lawyers'  Ed.  905. 

Appeals  from  the  Circuit  Court  of  the  United  States  for  the 
Southern  District  of  New  York. 

These  were  three  writs  of  habeas  corpus,  granted  by  the  Circuit 
Court  of  the  United  States  for  the  Southern  District  of  New 
York,  upon  petitions  of  Chinese  laborers,  arrested  and  held  by 
the  marshal  of  the  district  for  not  having  certificates  of  residence, 
under  section  6  of  the  act  of  May  5, 1892,  c.  60,  .  .  . 

Each  petition  alleged  that  the  petitioner  was  arrested  and  de- 
tained without  due  process  of  law,  and  that  section  6  of  the  act 
of  May  5,  1892,  was  unconstitutional  and  void.  [The  section  com- 
plained of  required  Chinese  laborers  within  the  limits  of  the 
Tnitcd  States  at  the  time  of  the  passage  of  the  act  to  take  out 
certificates  of  residence.  Those  who  neglected  to  do  so  within 
one  year  without  good  cause  were  made  liable  to  deportation.] 


36  CASES  ON  CONSTITUTIONAL  LAW. 

In  each  case,  the  Circuit  Court,  after  a  hearing  upon  the  writ 
of  habeas  corpus  and  the  return  of  the  marshal,  dismissed  the  writ 
of  habeas  corpus,  and  allowed  an  appeal  of  the  petitioner  to  this 
court,  and  admitted  him  to  bail  pending  the  appeal.  .  .  . 

MR.  JUSTICE  GRAY,  after  stating  the  facts,  delivered  the  opin- 
ion of  the  court. 

The  general  principles  of  public  law  which  lie  at  the  founda- 
tion of  these  cases  are  clearly  established  by  previous  judgments 
of  this  court,  and  by  the  authorities  therein  referred  to. 

In  the  recent  case  of  Nishimura  Ekiu  v.  United  States,  142 
U.  S.  651,  659,  the  court,  in  sustaining  the  action  of  the  execu- 
tive department,  putting  in  force  an  act  of  Congress  for  the  ex- 
clusion of  aliens,  said :  "  It  is  an  accepted  maxim  of  international 
law,  that  every  sovereign  nation  has  the  power,  as  inherent  in 
sovereignty,  and  essential  to  self-preservation,  to  forbid  the  en- 
trance of  foreigners  within  its  dominions,  or  to  admit  them  only 
in  such  cases  and  upon  such  conditions  as  it  may  see  fit  to  pre- 
scribe. In  the  United  States,  this  power  is  vested  in  the  national 
government,  to  which  the  Constitution  has  committed  the  entire 
control  of  international  relations,  in  peace  as  well  as  in  war.  It 
belongs  to  the  political  department  of  the  government,  and  may 
be  exercised  either  through  treaties  made  by  the  President  and 
Senate,  or  through  statutes  enacted  by  Congress." 

The  same  views  were  more  fully  expounded  in  the  earlier  case 
of  Chae  Chan  Ping  v.  United  States,  130  U.  S.  581,  in  which  the 
validity  of  a  former  act  of  Congress,  excluding  Chinese  laborers 
from  the  United  States,  under  the  circumstances  therein  stated, 
was  affirmed. 

In  the  elaborate  opinion  delivered  by  Mr.  Justice  Field,  in  be- 
half of  the  court,  it  was  said :  ' '  Those  laborers  are  not  citizens  of 
the  United  States;  they  are  aliens.  That  the  government  of  the 
United  States,  through  the  action  of  the  legislative  department, 
can  exclude  aliens  from  its  territory  is  a  proposition  which  we  do 
not  think  open  to  controversy.  Jurisdiction  over  its  own  terri- 
tory to  that  extent  is  an  incident  of  every  independent  nation. 
It  is  a  part  of  its  independence.  If  it  could  not  exclude  aliens, 
it  would  be  to  that  extent  subject  to  the  control  of  another 
power."  "The  United  States,  in  their  relation  to  foreign  coun- 
tries and  their  subjects  or  citizens,  are  one  nation,  invested  with 
powers  which  belong  to  independent  nations,  the  exercise  of 
which  can  be  invoked  for  the  maintenance  of  its  absolute  inde- 


FONG  TUB  TING  v.  UNITED  STATES.  37 

pendence  and  security  throughout  its  entire  territory."  130 
U.  S.  603,  604. 

It  was  also  said,  repeating  the  language  of  Mr.  Justice  Bradley 
in  Knox  v.  Lee,  12  Wall.  457,  555:  "The  United  States  is  not 
only  a  government,  but  it  is  a  national  government,  and  the  only 
government  in  this  country  that  has  the  character  of  nationality. 
It  is  invested  with  power  over  all  the  foreign  relations  of  the 
country,  war,  peace,  and  negotiations  and  intercourse  with  other 
nations;  all  of  which  are  forbidden  to  the  State  governments." 
130  U.  S.  605.  And  it  was  added :  "For  local  interests  the  sev- 
eral States  of  the  Union  exist;  but  for  international  purposes, 
embracing  our  relations  with  foreign  nations,  we  are  but  one 
people,  one  nation,  one  power."  130  U.  S.  606. 

The  court  then  went  on  to  say :  "To  preserve  its  independence, 
and  give  security  against  foreign  aggression  and  encroachment, 
is  the  highest  duty  of  every  nation,  and  to  attain  these  ends 
nearly  all  other  considerations  are  to  be  subordinated.  It  mat- 
ters not  in  what  form  such  aggression  and  encroachment  come, 
whether  from  the  foreign  nation  acting  in  its  national  character, 
or  from  vast  hordes  of  its  people  crowding  in  upon  us.  The  gov- 
ernment, possessing  the  powers  which  are  to  be  exercised  for  pro- 
tection and  security,  is  clothed  with  authority  to  determine  the 
occasion  on  which  the  powers  shall  be  called  forth ;  and  its  deter- 
mination, so  far  as  the  subjects  affected  are  concerned,  is  neces- 
sarily conclusive  upon  all  its  departments  and  officers.  If, 
therefore,  the  government  of  the  United  States,  through  its  legis- 
lative  department,  considers  the  presence  of  foreigners  of  a  dif- 
tVrvnt  race  in  this  country,  who  will  not  assimiliate  with  us,  to 
be  dangerous  to  its  peace  and  security,  their  exclusion  is  not  to 
be  stayed  because  at  the  time  there  are  no  actual  hostilities  with 
the  nation  of  which  the  foreigners  are  subjects.  The  existence 
of  war  would  render  the  necessity  of  the  proceeding  only  more 
obvious  and  pressing.  The  same  necessity,  in  a  less  pressing  de- 
gree, may  arise  when  war  does  not  exist,  and  the  same  authority 
which  adjudges  the  necessity  in  one  case  must  also  determine  it 
in  the  other.  In  both  cases,  its  determination  is  conclusive  upon 
thr  judiciary.  If  the  government  of  the  country  of  which  the 
foreigners  excluded  are  subjects  is  dissatisfied  with  this  action, 
it  can  make  complaint  to  the  executive  head  of  our  government, 
or  resort  to  any  other  measures  which,  in  its  judgment,  its  inter- 
ests or  dignity  may  demand ;  and  there  lies  its  only  remedy.  The 
power  of  the  government  to  exclude  foreigners  from  the  coun- 
try, whenever,  in  its  judgment,  the  public  interests  require  such 


38  CASES  ON  CONSTITUTIONAL  LAW. 

exclusion,  has  been  asserted  in  repeated  instances,  and  never  de- 
nied by  the  executive  or  legislative  departments."  130  U.  S. 
606,  607.  This  statement  was  supported  by  many  citations  from 
the  diplomatic  correspondence  of  successive  Secretaries  of  State, 
collected  in  Wharton  's  International  Law  Digest,  §  206. 

The  right  of  a  nation  to  expel  or  deport  foreigners,  who  have 
not  been  naturalized  or  taken  any  steps  towards  becoming  citi- 
zens of  the  country,  rests  upon  the  same  grounds,  and  is  as  abso- 
lute and  unqualified  as  the  right  to  prohibit  and  prevent  their 
entrance  into  the  country. 

This  is  clearly  affirmed  in  dispatches  referred  to  by  the  court 
in  Chae  Chan  Ping's  Case.  In  1856,  Mr.  Marcy  wrote :  "Every 
society  possesses  the  undoubted  right  to  determine  who  shall  com- 
pose its  members,  and  it  is  exercised  by  all  nations,  both  in  peace 
and  war.  A  memorable  example  of  the  exercise  of  this  power  in 
time  of  peace  was  the  passage  of  the  alien  law  of  the  United 
States  in  the  year  1798."  In  1869,  Mr.  Fish  wrote:  "The  con- 
trol of  the  people  within  its  limits,  and  the  right  to  expel  from 
its  territory  persons  who  are  dangerous  to  the  peace  of  the  State, 
are  too  clearly  within  the  essential  attributes  of  sovereignty  to  be 
seriously  contested."  "Wharton 's  International  Law  Digest, 
§206;  130  U.  S.  607.  .  .  . 

The  right  to  exclude  or  to  expel  all  aliens,  or  any  class  of 
aliens,  absolutely  or  upon  certain  conditions,  in  war  or  in  peace, 
being  an  inherent  and  inalienable  right  of  every  sovereign  and 
independent  nation,  essential  to  its  safety,  its  independence,  and 
its  welfare,  the  question  now  before  the  court  is  whether  the 
manner  in  which  Congress  has  exercised  this  right  in  sections  6 
and  7  of  the  act  of  1892  is  consistent  with  the  Constitution. 

The  United  States  are  a  sovereign  and  independent  nation, 
and  are  vested  by  the  Constitution  with  the  entire  control  of  in- 
ternational relations,  and  with  all  the  powers  of  government  nec- 
essary to  maintain  that  control  and  to  make  it  effective.  The 
only  government  of  this  country,  which  other  nations  recognize 
or  treat  with,  is  the  government  of  the  Union;  and  the  only 
American  flag  known  throughout  the  world  is  the  flag  of  the 
United  States. 

The  Constitution  of  the  United  States  speaks  with  no  uncertain 
sound  upon  this  subject.  That  instrument,  established  by  the 
people  of  the  United  States  as  the  fundamental  law  of  the  land, 
has  conferred  upon  the  President  the  executive  power ;  has  made 
him  the  commander-in-chief  of  the  army  and  navy;  has  author- 
ized him,  by  and  with  the  consent  of  the  Senate,  to  make  treaties, 


FONG  YUE  TING  v.  UNITED  STATES.  39 

and  to  appoint  ambassadors,  public  ministers,  and  consuls;  and 
has  made  it  his  duty  to  take  care  that  the  laws  be  faithfully  exe- 
cuted. The  Constitution  has  granted  to  Congress  the  power  to 
regulate  commerce  with  foreign  nations,  including  the  entrance 
of  ships,  the  importation  of  goods,  and  the  bringing  of  persons 
into  the  ports  of  the  United  States ;  to  establish  a  uniform  rule  of 
naturalization ;  to  define  and  punish  piracies  and  felonies  com- 
mitted on  the  high  seas,  and  offences  against  the  law  of  nations; 
to  declare  war,  grant  letters  of  marque  and  reprisal,  and  make 
rules  concerning  captures  on  land  and  water ;  to  raise  and  support 
armies,  to  provide  and  maintain  a  navy,  and  to  make  rules  for  the 
government  and  regulation  of  the  land  and  naval  forces;  and 
to  make  all  laws  necessary  and  proper  for  carrying  into  execu- 
tion these  powers,  and  all  other  powers  vested  by  the  Constitu- 
tion in  the  government  of  the  United  States,  or  in  any  depart- 
ment or  officer  thereof.  And  the  several  States  are  expressly  for- 
bidden to  enter  into  any  treaty,  alliance,  or  confederation;  to 
grant  letters  of  marque  and  reprisal ;  to  enter  into  any  agreement 
or  compact  with  another  State,  or  with  a  foreign  power;  or  to 
engage  in  war,  unless  actually  invaded,  or  in  such  imminent 
danger  as  will  not  admit  of  delay.  .  .  . 

The  power  to  exclude  or  to  expel  aliens,  being  a  power  affecting 
international  relations,  is  vested  in  the  political  departments  of 
the  government,  and  is  to  be  regulated  by  treaty  or  by  act  of 
Congress,  and  to  be  executed  by  the  executive  authority  accord- 
ing to  the  regulations  so  established,  except  so  far  as  the  judicial 
department  has  been  authorized  by  treaty  or  by  statute,  or  is 
required  by  the  paramount  law  of  the  Constitution,  to  inter- 
vene. .  .  . 

Congress,  having  the  right,  as  it  may  see  fit,  to  expel  aliens  of  a 
particular  class,  or  to  permit  them  to  remain,  has  undoubtedly  the 
right  to  provide  a  system  of  registration  and  identification  of  the 
members  of  that  class  within  the  country,  and  to  take  all  proper 
means  to  carry  out  the  system  which  it  provides.  .  .  . 

In  our  jurisprudence,  it  is  well  settled  that  the  provisions  of  an 
act  of  Congress,  passed  in  the  exercise  of  its  constitutional  author- 
ity, on  this,  as  on  any  other  subject,  if  clear  and  explicit,  must  be 
upheld  by  the  courts  even  in  contravention  of  express  stipulations 
in  an  earlier  treaty.  As  was  said  by  this  court  in  Chae  Chan 
Ping's  Case,  following  previous  decisions:  "The  treaties  were  of 
no  greater  legal  obligation  than  the  act  of  Congress.  By  the  Con- 
stitution, laws  made  in  pursuance  thereof  and  treaties  made  under 
the  authority  of  the  United  States  are  both  declared  to  be  the 


40  CASES  ON  CONSTITUTIONAL  LAW. 

supreme  law  of  the  land,  and  no  paramount  authority  is  given  to 
one  over  the  other.  A  treaty,  it  is  true,  is  in  its  nature  a  con- 
tract between  nations,  and  is  often  merely  promissory  in  its  char- 
acter, requiring  legislation  to  carry  its  stipulations  into  effect. 
Such  legislation  will  be  open  to  future  repeal  or  amendment.  If 
the  treaty  operates  by  its  own  force,  and  relates  to  a  subject 
within  the  power  of  Congress,  it  can  be  deemed  in  that  particular 
only  the  equivalent  of  a  legislative  act,  to  be  repealed  or  modified 
at  the  pleasure  of  Congress.  In  either  case,  the  last  expression  of 
the  sovereign  will  must  control. "  "So  far  as  a  treaty  made  by  the 
United  States  with  any  foreign  nation  can  become  the  subject 
of  judicial  cognizance  in  the  courts  of  this  country,  it  is  subject 
to  such  acts  as  Congress  may  pass  for  its  enforcement,  modifica- 
tion, or  repeal."  130  U.  S.  600.  See  also  Foster  v.  Neilson,  2 
Pet.  253,  314;  Edye  v.  Robertson,  112  U.  S.  580,  597-599 ;  Whit- 
ney v.  Robertson,  124  U.  S.  190.  .  .  . 

The  question  whether,  and  upon  what  conditions,  these  aliens 
shall  be  permitted  to  remain  within  the  United  States  being  one 
to  be  determined  by  the  political  departments  of  the  government, 
the  judicial  department  cannot  properly  express  an  opinion  upon 
the  wisdom,  the  policy  or  the  justice  of  the  measures  enacted  by 
Congress  in  the  exercise  of  the  powers  confided  to  it  by  the  Con- 
stitution over  this  subject. 

Upon  careful  consideration  of  the  subject,  the  only  conclusion 
which  appears  to  us  to  be  consistent  with  the  principles  of  inter- 
national law,  with  the  Constitution  and  laws  of  the  United  States, 
and  with  the  previous  decisions  of  this  court,  is  that  in  each  of 
these  cases  the  judgment  of  the  Circuit  Court,  dismissing  the  writ 
of  habeas  corpus,  is  right  and  must  be  Affirmed. 

[MR.  CHIEF  JUSTICE  FULLER,  MR.  JUSTICE  BREWER,  and  MR. 
JUSTICE  FIELD  delivered  dissenting  opinions.] 

NOTE. — On  a  similar  state  of  facts  involving  the  right  of  an  alien  to  enter 
the  colony  of  Victoria,  the  Privy  Council  of  Great  Britain  reached  the  same 
result.  Musgrove  v.  Chun  Teeong  Toy,  L.  B.  1891,  Appeal  Cases,  272;  60 
L.  J.  P.  C.  28.  In  the  United  States,  Congress  may  legislate  for  the  ex- 
clusion of  aliens  not  only  in  the  exercise  of  the  inherent  authority  of  the 
Federal  Government,  but  also  by  virtue  of  its  delegated  authority  to  regulate 
foreign  commerce.  Nishimura  Ekiu  v.  United  States  (1892),  142  U.  S.  651. 

The  inherent  right  to  exclude  aliens  has  found  many  applications,  all  of 
which  rest  exclusively  within  the  discretion  of  the  political  departments  of 
the  government.  Among  the  first  classes  excluded  were  contract  laborers, 
United  States  v.  Laws  (1896),  163  U.  S.  258,  but  the  restriction  has  been 
extended  to  anarchists,  United  States  v.  Williams  (1904),  194  U.  S.  279,  to 


FON<;   Yl'K  TING  v.   UNITED  STATES.  41 

persons  convicted  of  crime,  United  States  T.  Williams  (1913),  203  Fed.  155, 
to  paupers  or  persons  liable  to  become  a  public  charge,  Japanese  Immigrant 
Cases  (1903),  189  U.  8.  86,  to  persons  assisted  by  others  to  come  to  the 
United  States,  United  States  v.  Bodgers  (1911),  191  Fed.  970,  and  to 
prostitutes,  United  States  v.  Bitty  (1908),  208  U.  8.  393,  Low  Wah  Suey  v. 
Backus  (1912),  225  U.  S.  460,  Lapina  v.  Williams  (1914),  232  U.  a  78.  The 
right  to  exclude  aliens  involves  the  right  to  control  the  privilege  of  transit 
through  the  United  States,  Fok  Yung  Yo  v.  United  States  (1902),  185 
U.  8.  296. 

The  most  important  measures  adopted  for  the  exclusion  of  aliens  are  those 
directed  to  the  exclusion  of  Chinese  "laborers."  This  word  has  been  held 
to  include  a  lodging-house  keeper,  In  re  Tenny  (1898),  86  Fed.  303,  a  pros- 
titute, Lee  Ah  Yin  v.  United  States  (1902),  116  Fed.  614,  a  gambler,  United 
States  v.  Ah  Fawn  (1893),  57  Fed.  591,  a  merchant  who  worked  in  a  laundry, 
United  States  v.  Yong  Yew  (1897),  83  Fed.  832,  and  a  tenant  of  a  farm, 
Lew  Quen  Wo  v.  United  States  (1911),  184  Fed.  685. 

The  right  to  exclude  aliens  involves  the  right  to  expel,  Tiaco  v.  Forbes 
(1913),  228  U.  8.  549. 

While  the  abstract  right  to  exclude  or  expel  aliens  is  admitted,  the  duties 
attendant  upon  membership  in  the  family  of  nations  must  not  be  overlooked. 
The  political  and  commercial  relations  of  nations  are  so  close  and  the 
privilege  of  entrance  and  residence  has  been  so  freely  accorded  that  an 
arbirtrary  exclusion  or  expulsion  may  give  rise  to  a  diplomatic  claim.  Bonfils, 
Manuel  de  Droit  International  Public,  ||  441,  442. 

For  a  state  to  exclude  all  foreigners  would  be  to  withdraw  from 
the  brotherhood  of  civilized  peoples ;  to  exclude  any  without  reason- 
able or  at  least  plausible  cause,  is  regarded  as  so  vexatious  and 
oppressive  that  a  government  is  thought  to  have  the  right  of  inter- 
fering in  favor  of  its  subjects  in  cases  where  sufficient  cause  does 
not,  in  its  judgment,  exist. 

Hall,  International  Law,  223. 

The  expulsion  of  aliens  even  more  than  their  exclusion  imposes  upon  the 
state  the  duty  of  showing  circumstances  which  justify  its  act  The  pre- 
vailing practice  was  well  stated  by  Gresham,  Secretary  of  State,  in  these 
words: 

The  just  rale  would  seem  to  be  that  no  nation  can  single  out  for 
expulsion  from  its  territory  any  individual  citizen  of  a  friendly 
nation  without  special  and  sufficient  grounds  therefor.  And  even 
when  such  grounds  exist  the  exclusion  should  be  effected  with  as 
little  injury  to  the  individual  and  his  property  interest  as  may  be 
compatible  with  the  safety  and  interests  of  the  country  which  expels 
him. 

Moore,  Digest  of  International  Lav,  IV,  84. 

The  whole  subject  is  admirably  treated  in  BouvA,  A  Treatise  on  the  Laic* 
Governing  the  Exclusion  and  Expulsion  of  Aliens  in  the  United  States, 


42  CASES  ON  CONSTITUTIONAL  LAW. 

SECTION  3.     THE  RELATIONS  OF  THE  FEDERAL  GOV- 
ERNMENT AND  THE  STATES. 

GRANDALL  v.  STATE  OF  NEVADA. 

SUPREME  COURT  OF  THE  UNITED  STATES.    1867. 
6  Wallace,  35;  18  Lawyers'  Ed.  745. 

Error  to  the  Supreme  Court  of  Nevada. 

In  1865,  the  legislature  of  Nevada  enacted  that  "there  shall 
be  levied  and  collected  a  capitation  tax  of  one  dollar  upon  every 
person  leaving  the  State  by  any  railroad,  stage-coach,  or  other 
vehicle  engaged  or  employed  in  the  business  of  transporting  pas- 
sengers for  hire, ' '  and  that  the  proprietors,  owners,  and  corpora- 
tions so  engaged  should  pay  the  said  tax  of  one  dollar  for  each 
and  every  person  so  conveyed  or  transported  from  the  State. 
For  the  purpose  of  collecting  the  tax,  another  section  required 
from  persons  engaged  in  such  business,  or  their  agents,  a  report 
every  month,  under  oath,  of  the  number  of  passengers  so  trans- 
ported, and  the  payment  of  the  tax  to  the  sheriff  or  other  proper 
officers. 

With  the  statute  in  existence,  Crandall,  who  was  the  agent  of  a 
stage  company  engaged  in  carrying  passengers  through  the  State 
of  Nevada,  was  arrested  for  refusing  to  report  the  number  of 
passengers  that  had  been  carried  by  the  coaches  of  his  company, 
and  for  refusing  to  pay  the  tax  of  one  dollar  imposed  on  each 
passenger  by  the  law  of  that  State.  He  pleaded  that  the  law  of 
the  State  under  which  he  was  prosecuted  was  void,  because  it  was 
in  conflict  with  the  Constitution  of  the  United  States;  and  his 
plea  being  overruled,  the  case  came  into  the  Supreme  Court  of 
the  State.  That  court — considering  that  the  tax  laid  was  not  an 
impost  on  "exports,"  nor  an  interference  with  the  power  of 
Congress  "to  regulate  commerce  among  the  several  States" — 
decided  against  the  right  thus  set  up  under  the  Federal  Constitu- 
tion. Its  judgment  was  now  here  for  review.  .  .  . 

MR.  JUSTICE  MILLER  delivered  the  opinion  of  the  court. 

The  question  for  the  first  time  presented  to  the  court  by  this 
record  is  one  of  importance.  The  proposition  to  be  considered 
is  the  right  of  a  State  to  levy  a  tax  upon  persons  residing  in  the 
State  who  may  wish  to  get  out  of  it,  and  upon  persons  not  resid- 
ing in  it  who  may  have  occasion  to  pass  through  it.  ... 

Having  determined  that  the  statute  of  Nevada  imposes  a  tax 


CRAXDALL  v.  STATE  OF  NEVADA.  43 

upon  the  passenger  for  the  privilege  of  leaving  the  State,  or  pass- 
ing through  it  by  the  ordinary  mode  of  passenger  travel,  we 
proceed  to  inquire  if  it  is  for  that  reason  in  conflict  with  the  Con- 
stitution of  the  United  States. 

In  the  argument  of  the  counsel  for  the  defendant  in  error,  and 
in  the  opinion  of  the  Supreme  Court  of  Nevada,  which  is  found 
in  the  record,  it  is  assumed  that  this  question  must  be  decided 
by  an  exclusive  reference  to  two  provisions  of  the  Constitution, 
namely:  that  which  forbids  any  State,  without  the  consent  of 
Congress,  to  lay  any  imposts  or  duties  on  imports  or  exports,  and 
that  which  confers  on  Congress  the  power  to  regulate  commerce 
with  foreign  nations  and  among  the  several  States.  .  .  . 

But  we  do  not  concede  that  the  question  before  us  is  to  be  de- 
termined by  the  two  clauses  of  the  Constitution  which  we  have 
been  examining. 

The  people  of  these  United  States  constitute  one  nation.  They 
have  a  government  in  which  all  of  them  are  deeply  interested. 
This  government  has  necessarily  a  capital  established  by  law, 
where  its  principal  operations  are  conducted.  Here  sits  its  legis- 
lature, composed  of  senators  and  representatives,  from  the  States 
and  from  the  people  of  the  States.  Here  resides  the  President, 
directing  through  thousands  of  agents,  the  execution  of  the  laws 
over  all  this  vast  country.  Here  is  the  seat  of  the  supreme  judi- 
cial power  of  the  nation,  to  which  all  its  citizens  have  a  right  to 
resort  to  claim  justice  at  its  hands.  Here  are  the  great  executive 
departments,  administering  the  offices  of  the  mails,  of  the  public 
lands,  of  the  collection  and  distribution  of  the  public  revenues, 
and  of  our  foreign  relations.  These  are  all  established  and  con- 
ducted under  the  admitted  powers  of  the  Federal  government. 
That  government  has  a  right  to  call  to  this  point  any  or  all  of  its 
citi/ons  to  aid  in  its  service,  as  members  of  the  Congress,  of  the 
courts,  of  the  executive  departments,  and  to  fill  all  its  other 
offices ;  and  this  right  cannot  be  made  to  depend  upon  the  pleas- 
ure of  a  State  over  whose  territory  they  must  pass  to  reach  the 
point  where  these  services  must  be  rendered.  The  government, 
also,  has  its  offices  of  secondary  importance  in  all  other  parts  of 
the  country.  On  the  sea-coasts  and  on  the  rivers  it  has  its  ports 
of  entry.  In  the  interior  it  has  its  land  offices,  its  revenue  offices, 
and  its  sub-treasuries.  In  all  these  it  demands  the  services  of  its 
citizens,  and  is  entitled  to  bring  them  to  those  points  from  all 
quarters  of  the  nation,  and  no  power  can  exist  in  a  Sta' 
obstruct  this  right  that  would  not  enable  it  to  defeat  the  purposes 
for  which  the  government  was  established. 


44  CASES  ON  CONSTITUTIONAL  LAW. 

The  Federal  power  has  a  right  to  declare  and  prosecute  wars, 
and,  as  a  necessary  incident,  to  raise  and  transport  troops  through 
and  over  the  territory  of  any  State  of  the  Union. 

If  this  right  is  dependent  in  any  sense,  however  limited,  upon 
the  pleasure  of  a  State,  the  government  itself  may  be  overthrown 
by  an  obstruction  to  its  exercise.  Much  the  largest  part  of  the 
transportation  of  troops  during  the  late  rebellion  was  by  rail- 
roads, and  largely  through  States  whose  people  were  hostile  to  the 
Union.  If  the  tax  levied  by  Nevada  on  railroad  passengers  had 
been  the  law  of  Tennessee,  enlarged  to  meet  the  wishes  of  her 
people,  the  treasury  of  the  United  States  could  not  have  paid  the 
tax  necessary  to  enable  its  armies  to  pass  through  her  territory. 

But  if  the  government  has  these  rights  on  her  own  account,  the 
citizen  also  has  correlative  rights.  He  has  the  right  to  come  to 
the  seat  of  government  to  assert  any  claim  he  may  have  upon  that 
government,  or  to  transact  any  business  he  may  have  with  it.  To 
seek  its  protection,  to  share  its  offices,  to  engage  in  administering 
its  functions.  He  has  a  right  to  free  access  to  its  sea-ports, 
through  which  all  the  operations  of  foreign  trade  and  commerce 
are  conducted,  to  the  sub-treasuries,  the  land  offices,  the  revenue 
offices,  and  the  courts  of  justice  in  the  several  States,  and  this 
right  is  in  its  nature  independent  of  the  will  of  any  State  over 
whose  soil  he  must  pass  in  the  exercise  of  it. 

The  views  here  advanced  are  neither  novel  or  unsupported 
by  authority.  The  question  of  the  taxing  power  of  the  States,  as 
its  exercise  has  affected  the  functions  of  the  Federal  government, 
has  been  repeatedly  considered  by  this  court,  and  the  right  of  the 
States  in  this  mode  to  impede  or  embarrass  the  constitutional 
operations  of  that  government,  or  the  rights  which  its  citizens 
hold  under  it,  has  been  uniformly  denied.  .  .  .  [Here  fol- 
lows a  discussion  of  McCulloch  v.  Maryland,  4  Wheat.  316; 
Brown  v.  Maryland,  12  Wheat.  419 ;  Weston  v.  Charleston,  2  Pet. 
449.] 

In  all  these  cases,  the  opponents  of  the  taxes  levied  by  the 
States  were  able  to  place  their  opposition  on  no  express  provision 
of  the  Constitution,  except  in  that  of  Brown  v.  Maryland.  But  in 
all  the  other  cases,  and  in  that  case  also,  the  court  distinctly 
placed  the  invalidity  of  the  State  taxes  on  the  ground  that  they 
interfered  with  an  authority  of  the  Federal  government,  which 
was  itself  only  to  be  sustained  as  necessary  and  proper  to  the  exer- 
cise of  some  other  power  expressly  granted. 

In  The  Passenger  Cases,  to  which  reference  has  already  been 
made,  Justice  Grier,  with  whom  Justice  Catron  concurred,  makes 


CRANDALL  v.  STATE  OP  NEVADA.  45 

this  one  of  the  four  propositions  on  which  they  held  the  tax  void 
in  those  cases.  Judge  Wayne  expresses  his  assent  to  Judge 
Grier's  views;  and  perhaps  this  ground  received  the  concurrence 
of  more  of  the  members  of  the  court  who  constituted  the  major- 
ity than  any  other.  But  the  principles  here  laid  down  may  be 
found  more  clearly  stated  in  the  dissenting  opinion  of  the  Chief 
Justice  in  those  cases,  and  with  more  direct  pertinency  to  the  case 
now  before  us  than  anywhere  else.  After  expressing  his  views 
fully  in  favor  of  the  validity  of  the  tax,  which  he  said  had  ex- 
clusive reference  to  foreigners,  so  far  as  those  cases  were  con- 
cerned, he  proceeds  to  say,  for  the  purpose  of  preventing  mis- 
apprehension, that  so  far  as  the  tax  affected  American  citizens  it 
could  not  in  his  opinion  be  maintained.  He  then  adds:  "Living 
as  we  do  under  a  common  government,  charged  with  the  great 
concerns  of  the  whole  Union,  every  citizen  of  the  United  States 
from  the  most  remote  States  or  territories,  is  entitled  to  free 
access,  not  only  to  the  principal  departments  established  at  Wash- 
ington, but  also  to  its  judicial  tribunals  and  public  offices  in  every 
State  of  the  Union.  .  .  .  For  all  the  great  purposes  for  whicli 
the  Federal  government  was  formed  we  are  one  people,  with  one 
common  country.  We  are  all  citizens  of  the  United  States,  and 
as  members  of  the  same  community  must  have  the  right  to  pass 
and  repass  through  every  part  of  it  without  interruption,  as 
freely  as  in  our  own  States.  And  a  tax  imposed  by  a  State,  for 
entering  its  territories  or  harbors,  is  inconsistent  with  the  rights 
which  belong  to  citizens  of  other  States  as  members  of  the  Union, 
and  with  the  objects  which  that  Union  was  intended  to  attain. 
Such  a  power  in  the  States  could  produce  nothing  but  discord 
and  mutual  irritation,  and  they  very  clearly  do  not  possess  it." 

Although  these  remarks  are  found  in  a  dissenting  opinion,  they 
do  not  relate  to  the  matter  on  which  the  dissent  was  founded. 
They  accord  with  the  inferences  which  we  have  already  drawn 
from  the  Constitution  itself,  and  from  the  decisions  of  this  court 
in  exposition  of  that  instrument. 

Those  principles,  as  we  have  already  stated  them  in  this  opin- 
ion, must  govern  the  present  case.  .  .  . 

Judgment  reversed,  and  the  case  remanded  to  the  Supreme 
fount  of  the  State  of  Nevada,  with  directions  to  discharge  the 
plaintiff  in  error  from  custody. 

MB.  JUSTICE  CLIFFORD.  I  agree  that  the  State  law  in  question 
is  unconstitutional  and  void,  but  I  am  not  able  to  concur  in  the 
principal  reasons  assigned  in  the  opinion  of  the  court  in  sup- 


46  CASES  ON  CONSTITUTIONAL  LAW. 

port  of  that  conclusion.  ...  I  hold  that  the  act  of  the  State 
legislature  is  inconsistent  with  the  power  conferred  upon  Con- 
gress to  regulate  commerce  among  the  several  States,  and  I  think 
the  judgment  of  the  court  should  have  been  placed  exclusively 
upon  that  ground.  .  .  .  The  CHIEF  JUSTICE  .  .  .  con- 
curs in  the  views  I  have  expressed. 


TEXAS  v.  WHITE  ET  AL. 

SUPREME  COURT  OP  THE  UNITED  STATES.    1868. 
7  Wallace,  700 ;  19  Lawyers '  Ed.  227. 

THE  CHIEF  JUSTICE  delivered  the  opinion  of  the  court. 

This  is  an  original  suit  in  this  court,  in  which  the  State  of 
Texas,  claiming  certain  bonds  of  the  United  States  as  her  prop- 
erty, asks  an  injunction  to  restrain  the  defendants  from  receiv- 
ing payment  from  the  National  government,  and  to  compel  the 
surrender  of  the  bonds  to  the  State.  .  .  . 

It  is  not  to  be  questioned  that  this  court  has  original  jurisdic- 
tion of  suits  by  States  against  citizens  of  other  States,  or  that  the 
States  entitled  to  invoke  this  jurisdiction  must  be  States  of  the 
Union.  But,  it  is  equally  clear  that  no  such  jurisdiction  has  been 
conferred  upon  this  court  of  suits  by  any  other  political  com- 
munities than  such  States. 

If,  therefore,  it  is  true  that  the  State  of  Texas  was  not  at  the 
time  of  filing  this  bill,  or  is  not  now,  one  of  the  United  States,  we 
have  no  jurisdiction  of  this  suit,  and  it  is  our  duty  to  dismiss 
it.  ... 

It  [the  word  state]  describes  sometimes  a  people  or  com- 
munity of  individuals  united  more  or  less  closely  in  political  rela- 
tions, inhabiting  temporarily  or  permanently  the  same  country ; 
often  it  denotes  only  the  country  or  territorial  region,  inhabited 
by  such  a  community ;  not  unf requently  it  is  applied  to  the  gov- 
ernment under  which  the  people  live ;  at  other  times  it  represents 
the  combined  idea  of  people,  territory,  and  government.  .  .  . 

In  the  Constitution  the  term  state  most  frequently  expresses 
the  combined  idea  just  noticed,  of  people,  territory,  and  govern- 
ment. A  state,  in  the  ordinary  sense  of  the  Constitution,  is  a 
political  community  of  free  citizens,  occupying  a  territory  of 
defined  boundaries,  and  organized  under  a  government  sanctioned 
and  limited  by  a  written  constitution,  and  established  by  the  con- 
sent of  the  governed.  It  is  the  union  of  such  states,  under  a  com- 


TEXAS  v.  WHITE  ET  AL.  47 

mon  constitution,  which  forms  the  distinct  and  greater  political 
unit,  which  that  Constitution  designates  as  the  United  States,  and 
makes  of  the  people  and  states  which  compose  it  one  people  and 
one  country.  .  .  . 

In  all  respects,  so  far  as  the  object  could  be  accomplished  by 
ordinances  of  the  convention,  by  acts  of  the  legislature,  and  by 
votes  of  the  citizens,  the  relations  of  Texas  to  the  Union  were 
broken  up,  and  new  relations  to  a  new  government  were  estab- 
lished for  them. 

The  position  thus  assumed  could  only  be  maintained  by  arms, 
and  Texas  accordingly  took  part,  with  the  other  Confederate 
States,  in  the  war  of  the  rebellion,  which  these  events  made  in- 
evitable. During  the  whole  of  that  war  there  was  no  governor, 
or  judge,  or  any  other  State  officer  in  Texas,  who  recognized  the 
National  authority.  Nor  was  any  officer  of  the  United  States  per- 
mitted to  exercise  any  authority  whatever  under  the  National 
government  within  the  limits  of  the  State  except  under  the 
immediate  protection  of  the  National  military  forces. 

Did  Texas,  in  consequence  of  these  acts,  cease  to  be  a  State? 
Or,  if  not,  did  the  State  cease  to  be  a  member  of  the  Union  ? 

It  is  needless  to  discuss,  at  length,  the  question  whether  the 
right  of  a  State  to  withdraw  from  the  Union  for  any  cause,  re- 
garded by  herself  as  sufficient,  is  consistent  with  the  Constitu- 
tion of  the  United  States. 

The  Union  of  the  States  never  was  a  purely  artificial  and  arbi- 
trary relation.  It  began  among  the  Colonies,  and  grew  out  of 
common  origin,  mutual  sympathies,  kindred  principles,  similar 
interests,  and  geographical  relations.  It  was  confirmed  and 
strengthened  by  the  necessities  of  war,  and  received  definite  form, 
and  character,  and  sanction  from  the  Articles  of  Confederation. 
By  these  the  Union  was  solemnly  declared  to  "be  perpetual." 
And  when  these  Articles  were  found  to  be  inadequate  to  the 
exigencies  of  the  country,  the  Constitution  was  ordained  "to  form 
a  more  perfect  Union."  It  is  difficult  to  convey  the  idea  of  indis- 
soluble unity  more  clearly  than  by  these  words.  What  can  be 
indissoluble  if  a  perpetual  Union,  made  more  perfect,  is  not  f 

But  the  perpetuity  and  indissolubility  of  the  Union,  by  no 
means  implies  the  loss  of  distinct  and  individual  existence,  or  of 
the  right  of  self-government  by  the  States.  Under  the  Articles 
of  Confederation,  each  State  retained  its  sovereignty,  freedom, 
and  independence,  and  every  power,  jurisdiction,  and  right  not 
expressly  delegated  to  the  United  States.  Under  the  Constitution, 
though  the  powers  of  the  States  were  much  restricted,  still,  all 


48  CASES  ON  CONSTITUTIONAL  LAW. 

powers  not  delegated  to  the  United  States,  nor  prohibited  to  the 
States,  are  reserved  to  the  States  respectively,  or  to  the  people. 
And  we  have  already  had  occasion  to  remark  at  this  term,  that 
"the  people  of  each  State  compose  a  State,  having  its  own  gov- 
ernment, and  endowed  with  all  the  functions  essential  to  separate 
and  independent  existence,"  and  that  "without  the  States  in 
union,  there  could  be  no  such  political  body  as  the  United  States. ' ' 
County  of  Lane  v.  Oregon,  7  Wallace,  76.  Not  only  therefore  can 
there  be  no  loss  of  separate  and  independent  autonomy  to  the 
States,  through  their  union  under  the  Constitution,  but  it  may 
be  not  unreasonably  said  that  the  preservation  of  the  States, 
and  the  maintenance  of  their  governments,  are  as  much  within 
the  design  and  care  of  the  Constitution  as  the  preservation  of 
the  Union  and  the  maintenance  of  the  National  government. 
The  Constitution,  in  all  of  its  provisions,  looks  to  an  indestruc- 
tible Union,  composed  of  indestructible  States. 

When,  therefore,  Texas  became  one  of  the  United  States,  she 
entered  into  an  indissoluble  relation.  All  the  obligations  of  per- 
petual union  and  all  the  guarantees  of  republican  government  in 
the  Union,  attached  at  once  to  the  State.  The  act  which  con- 
summated her  admission  into  the  Union  was  something  more  than 
a  compact;  it  was  the  incorporation  of  a  new  member  into  the 
political  body.  And  it  was  final.  The  union  between  Texas  and 
the  other  States  was  as  complete,  as  perpetual,  and  as  indissoluble 
as  the  union  between  the  original  States.  There  was  no  place  for 
reconsideration,  or  revocation,  except  through  revolution,  or 
through  consent  of  the  States. 

Considered  therefore  as  transactions  under  the  Constitution, 
the  ordinance  of  secession,  adopted  by  the  convention  and  rati- 
fied by  a  majority  of  the  citizens  of  Texas,  and  all  the  acts  of 
her  legislature  intended  to  give  effect  to  that  ordinance,  were 
absolutely  null.  They  were  utterly  without  operation  in  law.  The 
obligations  of  the  State,  as  a  member  of  the  Union,  and  of  every 
citizen  of  the  State,  as  a  citizen  of  the  United  States,  remained 
perfect  and  unimpaired.  It  certainly  follows  that  the  State  did 
not  cease  to  be  a  State,  nor  her  citizens  to  be  citizens  of  the  Union. 
If  this  were  otherwise,  the  State  must  have  become  foreign,  and 
her  citizens  foreigners.  The  war  must  have  ceased  to  be  a  war 
for  the  suppression  of  rebellion,  and  must  have  become  a  war  for 
conquest  and  subjugation. 

Our  conclusion  therefore  is,  that  Texas  continued  to  be  a  State, 
and  a  State  of  the  Union,  notwithstanding  the  transactions  to 
which  we  have  referred.  And  this  conclusion,  in  our  judgment, 


TEXAS  v.  WHITE  ET  AL.  49 

is  not  in  conflict  with  any  act  or  declaration  of  any  department 
of  the  National  government,  but  entirely  in  accordance  with  the 
whole  series  of  such  acts  and  declarations  since  the  first  outbreak 
of  the  rebellion. 

But  in  order  to  the  exercise,  by  a  State,  of  the  right  to  sue  in 
this  court,  there  needs  to  be  a  State  government,  competent  to 
represent  the  State  in  its  relations  with  the  National  government, 
so  far  at  least  as  the  institution  and  prosecution  of  a  suit  is  con- 
cerned. 

And  it  is  by  no  means  a  logical  conclusion,  from  the  premises 
which  we  have  endeavored  to  establish,  that  the  governmental 
relations  of  Texas  to  the  Union  remained  unaltered.  Obligations 
often  remain  unimpaired,  while  relations  are  greatly  changed. 
The  obligations  of  allegiance  to  the  State,  and  of  obedience  to  her 
laws,  subject  to  the  Constitution  of  the  United  States,  are  binding 
upon  all  citizens,  whether  faithful  or  unfaithful  to  them ;  but  the 
relations  which  subsist  while  these  obligations  are  performed,  are 
essentially  different  from  those  which  arise  when  they  are  disre- 
garded and  set  at  nought.  And  the  same  must  necessarily  be 
true  of  the  obligations  and  relations  of  States  and  citizens  to  the 
Union.  No  one  has  been  bold  enough  to  contend  that,  while  Texas 
was  controlled  by  a  government  hostile  to  the  United  States,  and 
in  affiliation  with  a  hostile  confederation,  waging  war  upon  the 
United  States,  senators  chosen  by  her  legislature,  or  representa- 
tives elected  by  her  citizens,  were  entitled  to  seats  in  Congress; 
or  that  any  suit,  instituted  in  her  name,  could  be  entertained  in 
this  court.  All  admit  that,  during  this  condition  of  civil  war, 
the  rights  of  the  State  as  a  member,  and  her  people  as  citizens  of 
the  Union,  were  suspended.  The  government  and  the  citizens  of 
the  State,  refusing  to  recognize  their  constitutional  obligations, 
assumed  the  character  of  enemies,  and  incurred  the  consequences 
of  rebellion. 

These  new  relations  imposed  new  duties  upon  the  United 
States.  The  first  was  that  of  suppressing  the  rebellion.  The  next 
was  that  of  re-establishing  the  broken  relations  of  the  State  with 
the  Union.  The  first  of  these  duties  having  been  performed,  the 
next  necessarily  engaged  the  attention  of  the  National  govern- 
ment 

The  authority  for  the  performance  of  the  first  had  been  found 
in  the  power  to  suppress  insurrection  and  carry  on  war ;  for  the 
performance  of  the  second,  authority  was  derived  from  the  obliga- 
tion of  the  United  States  to  guarantee  to  every  State  in  the  Union 
a  republican  form  of  government.  The  latter,  indeed,  in  the  case 
B.C.L.— 4 


50  CASES  ON  CONSTITUTIONAL  LAW. 

of  a  rebellion  which  involves  the  government  of  a  State,  and  for 
the  time  excludes  the  National  authority  from  its  limits,  seems  to 
be  a  necessary  complement  to  the  former. 

Of  this,  the  case  of  Texas  furnishes  a  striking  illustration. 
When  the  war  closed  there  was  no  government  in  the  State  except 
that  which  had  been  organized  for  the  purpose  of  waging  war 
against  the  United  States.  That  government  immediately  disap- 
peared. The  chief  functionaries  left  the  State.  Many  of  the 
subordinate  officials  followed  their  example.  Legal  responsibili- 
ties were  annulled  or  greatly  impaired.  It  was  inevitable  that 
great  confusion  should  prevail.  If  order  was  maintained,  it  was 
where  the  good  sense  and  virtue  of  the  citizens  gave  support  to 
local  acting  magistrates,  or  supplied  more  directly  the  needful 
restraints. 

A  great  social  change  increased  the  difficulty  of  the  situation. 
Slaves,  in  the  insurgent  States,  with  certain  local  exceptions,  had 
been  declared  free  by  the  Proclamation  of  Emancipation;  and 
whatever  questions  might  -be  made  as  to  the  effect  of  that  act, 
under  the  Constitution,  it  was  clear,  from  the  beginning,  that  its 
practical  operation,  in  connection  with  legislative  acts  of  like 
tendency,  must  be  complete  enfranchisement.  Wherever  the 
National  forces  obtained  control,  the  slaves  became  freemen.  Sup- 
port to  the  acts  of  Congress  and  the  proclamation  of  the  President, 
concerning  slaves,  was  made  a  condition  of  amnesty  (13  Stat.  at 
Large,  737),  by  President  Lincoln,  in  December,  1863,  and  by 
President  Johnson,  in  May,  1865  (Ib.,  758).  And  emancipation 
was  confirmed,  rather  than  ordained,  in  the  insurgent  States,  by 
the  amendment  to  the  Constitution  prohibiting  slavery  through- 
out the  Union,  which  was  proposed  by  Congress  in  February, 
1865,  and  ratified,  before  the  close  of  the  following  autumn,  by 
the  requisite  three-fourths  of  the  States  (Ib.,  774-5). 

The  new  freemen  necessarily  became  part  of  the  people,  and 
the  people  still  constituted  the  State ;  for  States,  like  individuals, 
retain  their  identity,  though  changed  to  some  extent  in  their  con- 
stituent elements.  And  it  was  the  State,  thus  constituted,  which 
was  now  entitled  to  the  benefit  of  the  constitutional  guarantee. 

There  being  then  no  government  in  Texas  in  constitutional  re- 
lations with  the  Union,  it  became  the  duty  of  the  United  States  to 
provide  for  the  restoration  of  such  a  government.  But  the  resto- 
ration of  the  government  which  existed  before  the  rebellion, 
without  a  new  election  of  officers,  was  obviously  impossible ;  and 
before  any  such  election  could  be  properly  held,  it  was  necessary 
that  the  old  constitution  should  receive  such  amendments  as 


TEXAS  v.  WHITE  ET  AU  51 

would  conform  its  provisions  to  the  new  conditions  created  by 
emancipation,  and  afford  adequate  security  to  the  people  of  the 
State.  .  .  . 

It  is  not  important  to  review,  at  length,  the  measures  which 
have  been  taken,  under  this  power,  by  the  executive  and  legis- 
lative departments  of  the  National  government.  It  is  proper, 
however,  to  observe  that  almost  immediately  after  the  cessation 
of  organized  hostilities,  and  while  the  war  yet  smouldered  in 
Texas,  the  President  of  the  United  States  issued  his  proclama- 
tion appointing  a  provisional  governor  for  the  State,  and  provid- 
ing for  the  assembling  of  a  convention,  with  a  view  to  the  re- 
establishment  of  a  republican  government,  under  an  amended 
constitution,  and  to  the  restoration  of  the  State  to  her  proper 
constitutional  relations.  A  convention  was  accordingly  assem- 
bled, the  constitution  amended,  elections  held,  and  a  State  gov- 
ernment, acknowledging  its  obligations  to  the  Union,  established. 

Whether  the  action  then  taken  was,  in  all  respects,  warranted 
by  the  Constitution,  it  is  not  now  necessary  to  determine.  The 
power  exercised  by  the  President  was  supposed,  doubtless,  to  be 
derived  from  his  constitutional  functions,  as  commander-in-chief ; 
and,  so  long  as  the  war  continued,  it  cannot  be  denied  that  he 
might  institute  temporary  government  within  insurgent  dis- 
tricts, occupied  by  the  National  forces,  or  take  measures,  in  any 
State,  for  the  restoration  of  State  government  faithful  to  the 
Union,  employing,  however,  in  such  efforts,  only  such  means 
and  agents  as  were  authorized  by  constitutional  laws. 

But,  the  power  to  carry  into  effect  the  clause  of  guarantee  is 
primarily  a  legislative  power,  and  resides  in  Congress.  "Under 
the  fourth  article  of  the  Constitution,  it  rests  with  Congress  to 
decide  what  government  is  the  established  one  in  a  State.  For,  as 
the  United  States  guarantee  to  each  State  a  republican  govern- 
ment, Congress  must  necessarily  decide  what  government  is  es- 
tablished in  the  State,  before  it  can  determine  whether  it  is  repub- 
lican or  not"  Luther  v.  Borden,  7  Howard,  42. 

This  is  the  language  of  the  late  Chief  Justice,  speaking  for  this 
court,  in  a  case  from  Rhode  Island,  arising  from  the  organisation 
of  opposing  governments  in  that  State.  And,  we  think  that  the 
principle  sanctioned  by  it  may  be  applied,  with  even  more  pro- 
priety, to  the  case  of  a  State  deprived  of  all  rightful  government, 
by  revolutionary  violence;  though  necessarily  limited  to  cases 
\vhen*  the  rightful  government  is  thus  subverted,  or  in  imminent 
danger  of  being  overthrown  by  an  opposing  government,  set  up 
by  force  within  the  State. 


52  CASES  ON  CONSTITUTIONAL  LAW. 

The  action  of  the  President  must,  therefore,  be  considered  as 
provisional,  and,  in  that  light,  it  seems  to  have  been  regarded  by 
Congress.  It  was  taken  after  the  term  of  the  38th  Congress  had 
expired.  The  39th  Congress,  which  assembled  in  December,  1865, 
followed  by  the  40th  Congress,  which  met  in  March,  1867,  pro- 
ceeded, after  long  deliberation,  to  adopt  various  measures  for 
reorganization  and  restoration.  These  measures  were  embodied  in 
proposed  amendments  to  the  Constitution,  and  in  the  acts  known 
as  the  Reconstruction  Acts,  which  have  been  so  far  carried  into 
effect,  that  a  majority  of  the  States  which  were  engaged  in  the 
rebellion  have  been  restored  to  their  constitutional  relations, 
under  forms  of  government,  adjudged  to  be  republican  by  Con- 
gress, through  the  admission  of  their  ' '  Senators  and  Representa- 
tives into  the  councils  of  the  Union." 

Nothing  in  the  case  before  us  requires  the  court  to  pronounce 
judgment  upon  the  constitutionality  of  any  particular  provision 
of  these  acts. 

But  it  is  important  to  observe  that  these  acts  themselves  show 
that  the  governments,  which  had  been  established  and  had  been 
in  actual  operation  under  executive  direction,  were  recognized 
by  Congress  as  provisional,  as  existing,  and  as  capable  of  con- 
tinuance. .  .  . 

What  has  thus  been  said  generally  describes,  with  sufficient 
accuracy,  the  situation  of  Texas.  A  provisional  governor  of  the 
State  was  appointed  by  the  President  in  1865 ;  in  1866  a  governor 
was  elected  by  the  people  under  the  constitution  of  that  year ;  at 
a  subsequent  date  a  governor  was  appointed  by  the  commander 
of  the  district.  Each  of  the  three  exercised  executive  functions 
and  actually  represented  the  State  in  the  executive  department. 

In  the  case  before  us  each  has  given  his  sanction  to  the  prose- 
cution of  the  suit,  and  we  find  no  difficulty,  without  investigating 
the  legal  title  of  either  to  the  executive  office,  in  holding  that  the 
sanction  thus  given  sufficiently  warranted  the  action  of  the  solici- 
tor and  counsel  in  behalf  of  the  State.  The  necessary  conclusion 
is  that  the  suit  was  instituted  and  is  prosecuted  by  competent 
authority. 

The  question  of  jurisdiction  being  thus  disposed  of,  we  proceed 
to  the  consideration  of  the  merits  as  presented  by  the  pleadings 
and  the  evidence.  .  .  . 

On  the  whole  case,  therefore,  our  conclusion  is  that  the  State 
of  Texas  is  entitled  to  the  relief  sought  by  her  bill,  and  a  decree 
must  be  made  accordingly. 


TARBLE'SCASE.  53 

[MR.  JUSTICE  GRIER,  MR.  JUSTICE  SWAYNE,  and  MR.  JUSTICE 
MILLER  dissented.] 

NOTE. — On  the  status  of  the  Confederacy  and  its  members  daring  the 
Civil  War  and  the  legal  consequences  of  their  acts,  see  Thorington  v.  Smith 
(1868),  8  Wall.  1;  Miller  v.  United  States  (1870),  11  Wall.  268;  Delmas  v. 
Insurance  Co.  (1872),  14  Wall.  661;  Ounn  v.  Barry  (1873),  15  WalL  610; 
Horn  v.  Lockhart  (1874),  17  WalL  570;  Sprott  v.  United  States  (1874),  20 
WalL  459;  Williams  v.  Bruffy  (1877),  96  U.  8.  176;  Dewing  v.  Perdicaries 
(1877),  96  U.  8.  193;  Keith  v.  Clark  (1878),  97  U.  8.  454;  Ford  v.  Surget 
(1878),  97  U.  8.  594;  Lamar  v.  Micou  (1884),  112  U.  8.  452;  Baldy  v. 
Hunter  (1898),  171  U.  8.  388;  Oakes  v.  United  States  (1898),  174  U.  8.  778. 

As  to  the  equality  of  the  States  in  the  Union,  see  Pollard's  Lessee  v. 
Hagan  (1845),  3  Howard  212;  Permoli  v.  First  Municipality  (1845),  3 
Howard  589;  Strader  v.  Graham  (1850),  10  Howard  82;  Escanaba  Co.  v. 
Chicago  (1882),  107  U.  S.  678;  Van  Brocklin  v.  Tennessee  (1886),  117 
U.  8.  151;  Hose  v.  Glover  (1886),  119  U.  8.  543;  Sands  v.  Manistee  River 
Improvement  Co.  (1887),  123  U.  S.  288;  Willamette  Iron  Bridge  Co.  v. 
Hatch  (1888),  125  U.  S.  1 ;  Boyd  v.  Thayer  (1892),  143  U.  8.  135;  Ward  v. 
Rare  Horse  (1896),  163  U.  S.  504;  Bolln  v.  Nebraska  (1900),  176  U.  S.  83; 
Stearns  v.  Minnesota  (1900),  179  U.  S.  223;  Coyle  v.  Oklahoma  (1911),  221 
U.  8.  559. 


TARBLE'S  CASE. 

SUPREME  COURT  OP  THE  UNITED  STATES.    1871. 
13  Wallace,  397;  20  Lawyers'  Ed.  597. 

Error  to  the  Supreme  Court  of  Wisconsin. 

MR.  JUSTICE  FIELD  .  .  .  delivered  the  opinion  of  the 
court.  .  .  . 

The  important  question  is  presented  by  this  case,  whether  a 
State  court  commissioner  has  jurisdiction,  upon  habeas  corpus,  to 
inquire  into  the  validity  of  the  enlistment  of  soldiers  into  the 
military  service  of  the  United  States,  and  to  discharge  them  from 
such  service  when,  in  his  judgment,  their  enlistment  has  not  been 
made  in  conformity  with  the  laws  of  the  United  States.  The 
question  presented  may  be  more  generally  stated  thus :  Whether 
any  judicial  officer  of  a  State  has  jurisdiction  to  issue  a  writ  of 
habeas  corpus,  or  to  continue  proceedings  under  the  writ  when 
issued,  for  the  discharge  of  a  person  held  under  the  authority, 
or  claim  and  color  of  the  authority,  of  the  United  States,  by  an 
officer  of  that  government.  For  it  is  evident,  if  such  jurisdiction 
may  be  exercised  by  any  judicial  officer  of  a  State,  it  may  be  exer- 
cised by  the  court  commissioner  within  the  county  for  which  he 
is  appointed ;  and  if  it  may  be  exercised  with  reference  to  soldiers 
detained  in  the'military  service  of  the  United  States,  whose  enlist- 


54  CASES  ON  CONSTITUTIONAL  LAW. 

merit  is  alleged  to  have  been  illegally  made,  it  may  be  exercised 
with  reference  to  persons  employed  in  any  other  department  of 
the  public  service  when  their  illegal  detention  is-  asserted.  It 
may  be  exercised  in  all  cases  where  parties  are  held  under  the 
authority  of  the  United  States,  whenever  the  invalidity  of  the 
exercise  of  that  authority  is  affirmed.  The  jurisdiction,  if  it 
exists  at  all,  can  only  be  limited  in  its  application  by  the  legis- 
lative power  of  the  State.  It  may  even  reach  to  parties  impris- 
oned under  sentence  of  the  National  courts,  after  regular  indict- 
ment, trial,  and  conviction,  for  offenses  against  the  laws  of  the 
United  States.  As  we  read  the  opinion  of  the  Supreme  Court  of 
Wisconsin  in  this  case,  this  is  the  claim  of  authority  asserted  by 
that  tribunal  for  itself  and  for  the  judicial  officers  of  that  State. 
It  does,  indeed,  disclaim  any  right  of  either  to  interfere  with  par- 
ties in  custody,  under  judicial  sentence,  when  the  National  court 
pronouncing  sentence  had  jurisdiction  to  try  and  punish  the 
offenders,  but  it  asserts,  at  the  same  time,  for  itself  and  for  each 
of  those  officers,  the  right  to  determine,  upon  habeas  corpus,  in 
all  cases,  whether  that  court  ever  had  such  jurisdiction.  .  .  . 
It  is  in  the  consideration  of  this  distinct  and  independent  char- 
acter of  the  government  of  the  United  States,  from  that  of  the 
government  of  the  several  States,  that  the  solution  of  the  question 
presented  in  this  case,  and  in  similar  cases,  must  be  found.  There 
are  within  the  territorial  limits  of  each  State  two  governments, 
restricted  in  their  spheres  of  action,  but  independent  of  each 
other,  and  supreme  within  their  respective  spheres.  Each  has  its 
separate  departments;  each  has  its  distinct  laws,  and  each  has 
its  own  tribunals  for  their  enforcement.  Neither  government  can 
intrude  within  the  jurisdiction,  or  authorize  any  interference 
therein  by  its  judicial  officers  with  the  action  of  the  other.  The 
two  governments  in  each  State  stand  in  their  respective  spheres 
of  action  in  the  same  independent  relation  to  each  other,  except 
in  one  particular,  that  they  would  if  their  authority  embraced 
distinct  territories.  That  particular  consists  in  the  supremacy 
of  the  authority  of  the  United  States  when  any  conflict  arises 
between  the  two  governments.  The  Constitution  and  the  laws 
passed  in  pursuance  of  it,  are  declared  by  the  Constitution  itself 
to  be  the  supreme  law  of  the  land,  and  the  judges  of  every  State 
are  bound  thereby,  "anything  in  the  constitution  or  laws  of  any 
State  to  the  contrary  notwithstanding."  Whenever,  therefore, 
any  conflict  arises  between  the  enactments  of  the  two  sovereign- 
ties, or  in  the  enforcement  of  their  asserted  authorities,  those  of 
the  National  government  must  have  supremacy  until  the  validity 


TARBLE'SCASE.  55 

of  the  different  enactments  and  authorities  can  be  finally  deter- 
mined by  the  tribunals  of  the  United  States.  This  temporary 
supremacy  until  judicial  decision  by  the  National  tribunals,  and 
the  ultimate  determination  of  the  conflict  by  such  decision,  are 
essential  to  the  preservation  of  order  and  peace,  and  the  avoid- 
ance of  forcible  collision  between  the  two  governments.  "The 
Constitution,"  as  said  by  Mr.  Chief  Justice  Taney,  "was  not 
framed  merely  to  guard  the  States  against  danger  from  abroad, 
but  chiefly  to  secure  union  and  harmony  at  home;  and  to  ac- 
complish this  end  it  was  deemed  necessary,  when  the  Constitution 
was  framed,  that  many  of  the  rights  of  sovereignty  which  the 
States  then  possessed  should  be  ceded  to  the  General  government ; 
and  that  in  the  sphere  of  action  assigned  to  it,  it  should  be  su- 
preme and  strong  enough  to  execute  its  own  laws  by  its  own 
tribunals,  without  interruption  from  a  State,  or  from  State 
authorities."  And  the  judicial  power  conferred  extends  to  all 
cases  arising  under  the  Constitution,  and  thus  embraces  every 
legislative  act  of  Congress,  whether  passed  in  pursuance  of  it, 
or  in  disregard  of  its  provisions.  The  Constitution  is  under  the 
view  of  the  tribunals  of  the  United  States  when  any  act  of  Con- 
gress is  brought  before  them  for  consideration. 

Such  being  the  distinct  and  independent  character  of  the  two 
governments,  within  their  respective  spheres  of  action,  it  follows 
that  neither  can  intrude  with  its  judicial  process  into  the  domain 
of  the  other,  except  so  far  as  such  intrusion  may  be  necessary  on 
the  part  of  the  National  government  to  preserve  its  rightful 
supremacy  in  cases  of  conflict  of  authority.  In  their  laws,  and 
mode  of  enforcement,  neither  is  responsible  to  the  other.  How 
their  respective  laws  shall  be  enacted ;  how  they  shall  be  carried 
into  execution ;  and  in  what  tribunals,  or  by  what  officers ;  and 
how  much  discretion,  or  whether  any  at  all  shall  be  vested  in 
their  officers,  are  matters  subject  to  their  own  control,  and  in  the 
regulation  of  which  neither  can  interfere  with  the  other. 

Now,  among  the  powers  assigned  to  the  National  government, 
is  the  power  "to  raise  and  support  armies,"  and  the  power  "to 
provide  for  the  government  and  regulation  of  the  land  and  naval 
forces."  The  execution  of  these  powers  falls  within  the  line  of 
its  duties;  and  its  control  over  the  subject  is  plenary  and  ex- 
clusive. It  can  determine,  without  question  from  any  State 
authority,  how  the  armies  shall  be  raised,  whether  by  voluntary 
enlistment  or  forced  draft,  the  age  at  which  the  soldier  shall  be 
received,  and  the  period  for  which  he  shall  be  taken,  the  com- 
pensation he  shall  be  allowed,  and  the  service  to  which  he  shall 


56  CASES  ON  CONSTITUTIONAL  LAW. 

be  assigned.  And  it  can  provide  the  rules  for  the  government 
and  regulation  of  the  forces  after  they  are  raised,  define  what 
shall  constitute  military  offenses,  and  prescribe  their  punishment. 
No  interference  with  the  execution  of  this  power  of  the  National 
government  in  the  formation,  organization,  and  government  of 
its  armies  by  any  State  officials  could  be  permitted  without 
greatly  impairing  the  efficiency,  if  it  did  not  utterly  destroy,  this 
branch  of  the  public  service.  Probably  in  every  county  and  city 
in  the  several  States  there  are  one  or  more  officers  authorized  by 
law  to  issue  writs  of  habeas  corpus  on  behalf  of  persons  alleged 
to  be  illegally  restrained  of  their  liberty ;  and  if  soldiers  could  be 
taken  from  the  army  of  the  United  States,  and  the  validity  of 
their  enlistment  inquired  into  by  any  one  of  these  officers,  such 
proceeding  could  be  taken  by  all  of  them,  and  no  movement  could 
be  made  by  the  National  troops  without  their  commanders  being 
subjected  to  constant  annoyance  and  embarrassment  from  this 
source.  The  experience  of  the  late  rebellion  has  shown  us  that, 
in  times  of  great  popular  excitement,  there  may  be  found  in 
every  State  large  numbers  ready  and  anxious  to  embarrass  the 
operations  of  the  government,  and  easily  persuaded  to  believe 
every  step  taken  for  the  enforcement  of  its  authority  illegal  and 
void.  Power  to  issue  writs  of  habeas  corpus  for  the  discharge  of 
soldiers  in  the  military  service,  in  the  hands  of  parties  thus  dis- 
posed, might  be  used,  and  often  would  be  used,  to  the  great  detri- 
ment of  the  public  service.  In  many  exigencies  the  measures  of 
the  National  government  might  in  this  way  be  entirely  bereft  of 
their  efficacy  and  value.  An  appeal  in  such  cases  to  this  court, 
to  correct  the  erroneous  action  of  these  officers,  would  afford  no 
adequate  remedy.  Proceedings  on  habeas  corpus  are  summary, 
and  the  delay  incident  to  bringing  the  decision  of  a  State  officer, 
through  the  highest  tribunal  of  the  State,  to  this  court  for  review 
would  necessarily  occupy  years,  and  in  the  meantime,  where  the 
soldier  was  discharged,  the  mischief  would  be  accomplished.  It 
is  manifest  that  the  powers  of  the  National  government  could  not 
be  exercised  with  energy  and  efficiency  at  all  times,  if  its  acts 
could  be  interfered  with  and  controlled  for  any  period  by  officers 
or  tribunals  of  another  sovereignty. 

It  is  true  similar  embarrassment  might  sometimes  be  occa- 
sioned, though  in  a  less  degree,  by  the  exercise  of  the  authority 
to  issue  the  writ  possessed  by  judicial  officers  of  the  United  States, 
but  the  ability  to  provide  a  speedy  remedy  for  any  inconvenience 
following  from  this  source  would  always  exist  with  the  National 
legislature. 


TARBLE'SCASE.  57 

State  judges  and  State  courts,  authorized  by  laws  of  their 
States  to  issue  writs  of  habeas  corpus,  have  undoubtedly  a  right 
to  issue  the  writ  in  any  case  where  a  party  is  alleged  to  be  ille- 
gally confined  within  their  limits,  unless  it  appear  upon  his  ap- 
plication that  he  is  confined  under  the  authority,  or  claim  and 
color  of  the  authority,  of  the  United  States,  by  an  officer  of  that 
government.  If  such  fact  appear  upon  the  application  the  writ 
should  be  refused.  If  it  do  not  appear,  the  judge  or  court  issu- 
ing the  writ  has  a  right  to  inquire  into  the  cause  of  imprison- 
ment and  ascertain  by  what  authority  the  person  is  held  within 
the  limits  of  the  State ;  and  it  is  the  duty  of  the  marshal,  or  other 
officer  having  the  custody  of  the  prisoner,  to  give,  by  a  proper 
return,  information  in  this  respect.  His  return  should  be  suffi- 
cient, in  its  detail  of  facts,  to  show  distinctly  that  the  imprison- 
ment is  under  the  authority,  or  claim  and  color  of  the  authority, 
of  the  United  States,  and  to  exclude  the  suspicion  of  imposition 
or  oppression  on  his  part.  And  the  process  or  orders,  under 
which  the  prisoner  is  held,  should  be  produced  with  the  return 
and  submitted  to  inspection,  in  order  that  the  court  or  judge 
issuing  the  writ  may  see  that  the  prisoner  is  held  by  the  officer, 
in  good  faith,  under  the  authority  or  claim  and  color  of  the  au- 
thority, of  the  United  States,  and  not  under  the  mere  pretense 
of  having  such  authority. 

This  right  to  inquire  by  process  of  habeas  corpus,  and  the  duty 
of  the  officer  to  make  a  return,  "grows  necessarily,"  says  Mr. 
Chief  Justice  Taney,  "out  of  the  complex  character  of  our  gov- 
ernment and  the  existence  of  two  distinct  and  separate  sover- 
eignties witihin  the  same  territorial  space,  each  of  them  restricted 
in  its  power,  and  each  within  its  sphere  of  action,  prescribed  by 
the  Constitution  of  the  United  States,  independent  of  the  other. 
But,  after  the  ivturn  is  made,  and  the  State  judge  or  court 
judicially  apprised  that  the  party  is  in  custody  under  the  author- 
ity of  the  United  States,  they  can  proceed  no  further.  They  then 
know  that  the  prisoner  is  within  the  dominion  and  jurisdiction 
of  another  government,  and  that  neither  the  writ  of  habeas  cor- 
pus nor  any  other  process  issued  under  State  authority  can  pass 
over  the  line  of  division  between  the  two  sovereignties.  1 1-1  's 
then  within  the  dominion  and  exclusive  jurisdiction  of  the  United 
St.-ites.  If  he  has  committed  an  offense  against  their  laws,  their 
tribunals  alone  can  punish  him.  If  he  is  wrongfully  imprisoned, 
th.  ir  judicial  tribunals  can  release  him  and  afford  him  redress." 

This  limitation  upon  the  power  of  State  tribunals  and  State 


58  CASES  ON  CONSTITUTIONAL  LAW. 

officers  furnishes  no  just  ground  to  apprehend  that  the  liberty  of 
the  citizen  will  thereby  be  endangered.  The  United  States  are  as 
much  interested  in  protecting  the  citizen  from  illegal  restraint 
under  their  authority,  as  the  several  States  are  to  protect  him 
from  the  like  restraint  under  their  authority,  and  are  no  more 
likely  to  tolerate  any  oppression.  Their  courts  and  judicial  offi- 
cers are  clothed  with  the  power  to  issue  the  writ  of  habeas  cor- 
pus in  all  cases,  where  a  party  is  illegally  restrained  of  his  lib- 
erty by  an  officer  of  the  United  States,  whether  such  illegality 
consists  in  the  character  of  the  process,  the  authority  of  the  offi- 
cer, or  the  invalidity  of  the  law  under  which  he  is  held.  And 
there  is  no  just  reason  to  believe  that  they  will  exhibit  any  hesi- 
tation to  exert  their  power,  when  it  is  properly  invoked.  Cer- 
tainly there  can  be  no  ground  for  supposing  that  their  action 
will  be  less  prompt  and  efficient  in  such  cases  than  would  be  that 
of  State  tribunals  and  State  officers.  .  .  . 

It  follows,  from  the  views  we  have  expressed,  that  the  court 
commissioner  of  Dane  County  was  without  jurisdiction  to  issue 
the  writ  of  habeas  corpus  for  the  discharge  of  the  prisoner  in  this 
case,  it  appearing,  upon  the  application  presented  to  him  for  the 
writ,  that  the  prisoner  was  held  by  an  officer  of  the  United  States, 
under  claim  and  color  of  the  authority  of  the  United  States,  as 
an  enlisted  soldier  mustered  into  the  military  service  of  the 
National  government;  and  the  same  information  was  imparted 
to  the  commissioner  by  the  return  of  -the  officer.  The  commis- 
sioner was,  both  by  the  application  for  the  writ  and  the  return  to 
it,  apprised  that  the  prisoner  was  within  the  dominion  and  juris- 
diction of  another  government,  and  that  no  writ  of  habeas  corpus 
issued  by  him  could  pass  over  the  line  which  divided  the  two 
sovereignties.  .  .  .  Judgment  reversed. 

The  CHIEF  JUSTICE,  dissenting.     .     .     . 

NOTE. — Accord:  Ableman  v.  Booth  (1859),  21  Howard  506;  Kobb  v. 
Connolly  (1884),  111  U.  S.  624;  Logan  v.  United  States  (1892),  144 
U.  S.  263. 


AMERICAN  INS.  CO.  v.  CANTER.  59 

SECTION  4.    THE  GOVERNMENT  OF  TERRITORIES  AND 
DEPENDENCIES. 

The  Congress  shall  have  power    .... 

To  dispose  of  and  make  all  needful  rules  and  regulations 
respecting  the  territory  or  other  property  belonging  to  the  United 
Stateo. 

Constitution  of  the  United  States,  Art.  IV,  sec.  3. 

THE  AMERICAN  INSURANCE  COMPANY  AND  THE 

OCEAN  INSURANCE  COMPANY  OP  NEW  YORK, 

APPELLANTS,  v.  356  BALES  OF  COTTON, 

DAVID  CANTER,  CLAIMANT  AND 

APPELLEE. 

SUPREME  COURT  or  THE  UNITED  STATES.    1828. 
1  Peters,  511;  7  Lawyers'  Ed.  242. 

MARSHALL,  C.  J.,  delivered  the  opinion  of  the  court. 

The  plaintiffs  filed  their  libel  in  this  cause  in  the  district  court 
of  South  Carolina,  to  obtain  restitution  of  356  bales  of  cotton, 
part  of  the  cargo  of  the  ship  Point  a  Petre;  which  had  been  in- 
sured by  them  on  a  voyage  from  New  Orleans  to  Havre  de  Grace, 
in  France.  The  Point  a  Petre  was  wrecked  on  the  coast  of  Flori- 
da, the  cargo  saved  by  the  inhabitants  and  carried  into  Key 
West,  where  it  was  sold  for  the  purpose  of  satisfying  the  salvors ; 
by  virtue  of  a  decree  of  a  court  consisting  of  a  notary  and  five 
jurors,  which  was  erected  by  an  act  of  the  territorial  legis- 
lature of  Florida.  .  .  . 

The  cause  depends  mainly  on  the  question  whether  the  prop- 
erty in  the  cargo  saved  was  changed  by  the  sale  at  Key  West. 
.  .  .  Its  validity  has  been  denied  on  the  ground  that  it  was 
ordered  by  an  incompetent  tribunal. 

The  tribunal  was  constituted  by  an  act  of  the  territorial  legis- 
lature of  Florida,  passed  on  the  4th  July,  1823,  which  is  in- 
serted in  the  record.  That  act  purports  to  give  the  power  which 
has  been  exercised;  consequently,  the  sale  is  valid,  if  the  terri- 
torial legislature  was  competent  to  enact  the  law. 

The  course  which  the  argument  has  taken,  will  require  that, 
in  deciding  this  question,  the  court  should  take  into  view  the 
relation  in  which  Florida  stands  to  the  United  States. 

The  constitution  confers  absolutely  on  the  government  of  the 
Union  the  powers  of  making  war  and  of  making  treaties ;  pome 
quently,  that  government  possesses  the  power  of  acquiring  terri- 
tory, either  by  conquest  or  by  treaty. 

The  usage  of  the  world  is,  if  a  nation  be  not  entirely  subdued, 


60  CASES  ON  CONSTITUTIONAL  LAW. 

to  consider  the  holding  of  conquered  territory  as  a  mere  military 
occupation,  until  its  fate  shall  be  determined  at  the  treaty  of 
peace.  If  it  be  ceded  by  the  treaty,  the  acquisition  is  confirmed, 
and  the  ceded  territory  becomes  a  part  of  the  nation  to  which  it  is 
annexed,  either  on  the  terms  stipulated  in  the  treaty  of  cession,  or 
onv«uch  as  its  new  master  shall  impose.  On  such  transfer  of 
territory,  it  has  never  been  held  that  the  relations  of  the  in- 
habitants with  each  other  undergo  any  change.  Their  relations 
with  their  former  sovereign  are  dissolved,  and  new  relations  are 
created  between  them  and  the  government  which  has  acquired 
their  territory.  The  same  act  which  transfers  their  country,  trans- 
fers the  allegiance  of  those  who  remain  in  it ;  and  the  law,  which 
may  be  denominated  political,  is  necessarily  changed,  although 
that  which  regulates  the  intercourse  and  general  conduct  of  in- 
dividuals, remains  in  force  until  altered  by  the  newly  created 
power  of  the  state. 

On  the  2d  of  February,  1819,  Spain  ceded  Florida  to  the 
United  States.  The  6th  article  of  the  treaty  of  cession  contains 
the  following  provision:  "The  inhabitants  of  the  territories 
which  his  Catholic  majesty  cedes  to  the  United  States  by  this 
treaty,  shall  be  incorporated  in  the  Union  of  the  United  States, 
as  soon  as  may  be  consistent  with  the  principles  of  the  federal 
constitution,  and  admitted  to  the  enjoyment  of  the  privileges, 
rights,  and  immunities  of  the  citizens  of  the  United  States."  8 
Stats,  at  Large,  252. 

This  treaty  is  the  law  of  the  land,  and  admits  the  inhabitants 
of  Florida  to  the  enjoyment  of  the  privileges,  rights  and  immu- 
nities of  the  citizens  of  the  "United  States.  It  is  unnecessary  to 
inquire  whether  this  is  not  their  condition,  independent  of  stipu- 
lation. They  do  not,  however,  participate  in  political  power ;  they 
do  not  share  in  the  government  till  Florida  shall  become  a  State. 
In  the  meantime,  Florida  continues  to  be  a  territory  of  the  United 
States,  governed  by  virtue  of  that  clause  in  the  constitution  which 
empowers  congress  "to  make  all  needful  rules  and  regulations 
respecting  the  territory  or  other  property  belonging  to  the  United 
States." 

Perhaps  the  power  of  governing  a  territory  belonging  to  the 
United  States,  which  has  not,  by  becoming  a  State,  acquired  the 
means  of  self-government,  may  result  necessarily  from  the  facts 
that  it  is  not  within  the  jurisdiction  of  any'particular  State,  and 
is  within  the  power  and  jurisdiction  of  the  United  States.  The 
right  to  govern  may  be  the  inevitable  consequence  of  the  right  to 
acquire  territory.  Whichever  may  be  the  source  whence  the 


AMERICAN  INS.  CO.  v.  CANTER.  61 

power  is  derived,  the  possession  of  it  is  unquestioned.  In  execu- 
tion of  it,  congress,  in  1822,  passed  "an  act  for  the  establishment 
of  a  territorial  government  in  Florida,"  (3  Stats,  at  Large,  654), 
and  on  the  3d  of  March,  1823,  passed  another  act  to  amend  the 
act  of  1822.  Under  this  act,  the  territorial  legislature  enacted  the 
law  now  under  consideration. 

The  5th  section  of  the  act  of  1823  creates  a  territorial  legis- 
lature, which  shall  have  legislative  powers  over  all  rightful  ob- 
jects of  legislation;  but  no  law  shall  be  valid  which  is  incon- 
sistent with  the  laws  and  the  constitution  of  the  United  States. 

The  7th  section  enacts  ' '  that  the  judicial  power  shall  be  vested 
in  two  superior  courts,  and  in  such  inferior  courts  and  justices  of 
the  peace  as  the  legislative  council  of  the  territory  may  from 
time  to  time  establish."  .  .  . 

It  has  been  contended  that,  by  the  constitution,  the  judicial 
power  of  the  United  States  extends  to  all  cases  of  admiralty  and 
maritime  jurisdiction,  and  that  the  whole  of  this  judicial  power 
must  be  vested  ' '  in  one  supreme  court  and  in  such  inferior  courts 
as  congress  shall  from  time  to  time  ordain  and  establish." 
Hence,  it  has  been  argued  that  congress  cannot  vest  admiralty 
jurisdiction  in  courts  created  by  the  territorial  legislature. 

We  have  only  to  pursue  this  subject  one  step  further  to  per- 
ceive that  this  provision  of  the  constitution  does  not  apply  to  it. 
The  next  sentence  declares  that  "the  judges,  both  of  the  supreme 
and  inferior  courts,  shall  hold  their  offices  during  good  behavior. " 
The  judges  of  the  superior  courts  of  Florida  hold  their  offices 
for  four  years.  These  courts,  then,  are  not  constitutional  courts, 
in  which  the  judicial  power  conferred  by  the  constitution  on  the 
general  government  can  be  deposited.  They  are  incapable  of  re- 
ceiving it.  They  are  legislative  courts,  created  in  virtue  of  the 
general  right  of  sovereignty  which  exists  in  the  government,  or 
in  virtue  of  that  clause  which  enables  congress  to  make  all  need- 
ful rules  and  regulations  respecting  the  territory  belonging  to  the 
United  States.  The  jurisdiction  with  which  they  are  invested  is 
not  a  part  of  that  judicial  power  which  is  defined  in  the  3d 
article  of  the  constitution,  but  is  conferred  by  congress,  in  the 
execution  of  those  general  powers  which  that  body  posaewes 
the  territories  of  the  United  States.  Although  admiralty  juris- 
diction can  be  exercised  in  the  States  in  those  courts  only  which 
are  established  in  pursuance  of  the  3d  article  of  the  constitu- 
tion, the  same  limitation  does  not  extend  to  the  territories.  In 
legislating  for  them,  congress  exercises  the  combined  powers  of 
the  general  and  of  a  state  government. 


62  CASES  ON  CONSTITUTIONAL  LAW. 

We  think,  then,  that  the  act  of  the  territorial  legislature 
erecting  the  court  by  whose  decree  the  cargo  of  the  Point  a  Petre 
was  sold,  is  not  "inconsistent  with  the  laws  and  constitution  of 
the  United  States,"  and  is  valid.  Consequently,  the  sale  made 
in  pursuance  of  it  changed  the  property,  and  the  decree  of  the 
circuit  court,  awarding  restitution  of  the  property  to  the  claim- 
ant, ought  to  be  affirmed,  with  costs. 


CALLAN  v.  WILSON. 

SUPREME  COURT  OF  THE  UNITED  STATES.     1888. 
127  U.  S.  540;  32  Lawyers'  Ed.  223. 

Appeal  from  the  Supreme  Court  of  the  District  of  Columbia. 

This  was  an  appeal  from  a  judgment  refusing,  upon  writ  of 
habeas  corpus,  to  discharge  the  appellant  from  the  custody  of  the 
appellee  as  marshal  of  the  District  of  Columbia.  It  appears  that 
by  an  information  filed  by  the  United  States  in  the  Police  Court 
of  the  District,  the  petitioner,  with  others,  was  charged  with  the 
crime  of  conspiracy,  and  having  been  found  guilty  by  the  court, 
was  sentenced  to  pay  a  fine  of  twenty-five  dollars,  and  upon  de- 
fault in  its  payment  to  suffer  imprisonment  in  jail  for  the  period 
of  thirty  days.  .  .  . 

The  contention  of  the  petitioner  was  that  he  is  restrained  of  his 
liberty  in  violation  of  the  Constitution.  ...  To  this  infor- 
mation the  defendants  interposed  a  demurrer,  which  was  over- 
ruled. They  united  in  requesting  a  trial  by  jury.  That  request 
was  denied,  and  a  trial  was  had  before  the  court,  without  the 
intervention  of  a  jury.  .  .  . 

MR.  JUSTICE  HARLAN  .  .  .  delivered  the  opinion  of  the 
court. 

It  is  contended  by  the  appellant  that  the  Constitution  of  the 
United  States  secured  to  him  the  right  to  be  tried  by  a  jury,  and, 
that  right  having  been  denied,  the  Police  Court  was  without  juris- 
diction to  impose  a  fine  upon  him,  or  to  order  him  to  be  impris- 
oned until  such  fine  was  paid.  This  precise  question  is  now,  for 
the  first  time,  presented  for  determination  by  this  court.  If  the 
appellant's  position  be  sustained,  it  will  follow  that  the  statute 
(Rev.  Stat.  Dist.  Col.  §1064),  dispensing  with  a  petit  jury,  in 
prosecutions  by  information  in  the  police  court,  is  inapplicable 
to  cases  like  the  present  one. 


CALLAN  v.  WILSON.  63 

The  third  article  of  the  Constitution  provides  that  "the  trial  of 
all  crimes,  except  in  cases  of  impeachment,  shall  be  by  jury,  and 
such  trial  shall  be  held  in  the  State  where  the  said  crimes  shall 
have  been  committed ;  but  when  not  committed  within  any  State, 
the  trial  shall  be  at  such  place  or  places  as  the  Congress  may  by 
law  have  directed."  The  Fifth  Amendment  provides  that  no 
person  shall  "be  deprived  of  life,  liberty  or  property,  without  due 
process  of  law."  -By  the  Sixth  Amendment  it  is  declared  that 
"in  all  criminal  prosecutions  the  accused  shall  enjoy  the  right  to 
a  speedy  and  public  trial,  by  an  impartial  jury  of  the  State  and 
district  wherein  the  crime  shall  have  been  committed,  which 
ilistrict  shall  have  been  previously  ascertained  by  law,  and  to  be 
informed  of  the  nature  and  cause  of  the  accusation ;  to  be  con- 
fronted with  the  witnesses  against  him;  to  have  compulsory 
process  for  obtaining  witnesses  in  his  favor,  and  to  have  the 
assistance  of  counsel  for  his  defense. ' ' 

The  contention  of  the  appellant  is,  that  the  offense  with  which 
he  is  charged  is  a  "  crime ' '  within  the  meaning  of  the  third  article 
of  the  Constitution,  and  that  he  was  entitled  to  be  tried  by  a  jury ; 
that  his  trial  by  the  police  court,  without  a  jury,  was  not  "due 
process  of  law"  within  the  meaning  of  the  Fifth  Amendment; 
and  that,  in  any  event,  the  prosecution  against  him  was  a  ' '  crim- 
inal prosecution,"  in  which  he  was  entitled,  by  the  Sixth  Amend- 
ment, to  a  speedy  and  public  trial  by  an  impartial  jury. 

The  contention  of  the  government  is,  that  the  Constitution  does 
not  require  that  the  right  of  trial  by  jury  shall  be  secured  to  the 
people  of  the  District  of  Columbia;  that  the  original  provision, 
that  when  a  crime  was  not  committed  within  any  State  ' '  the  trial 
shall  be  at  such  place  or  places  as  the  Congress  may  by  law  have 
directed,"  had,  probably,  reference  only  to  offenses  committed  on 
the  high  seas ;  that,  in  adopting  the  Sixth  Amendment,  the  people 
of  the  States  were  solicitous  about  trial  by  jury  in  the  States  and 
nowhere  else,  leaving  it  entirely  to  Congress  to  declare  in  what 
way  persons  should  be  tried  who  might  be  accused  of  crime  on  the 
high  seas,  and  in  the  District  of  Columbia  and  in  places  to  be 
thereafter  ceded  for  the  purposes,  respectively,  of  a  seat  of  gov- 
ernment, forts,  magazines,  arsenals,  and  dock-yards;  and,  conse- 
quently that  that  Amendment  should  be  deemed  to  have  super- 
seded so  much  6f  the  third  article  of  the  Constitution  as  relates  to 
the  trial  of  crimes  by  a  jury. 

I'pon  a  careful  examination  of  this  position  we  are  of  opinion 
that  it  cannot  be  sustained  without  violence  to  the  letter  and 
spirit  of  the  Constitution. 


64  CASES  ON  CONSTITUTIONAL  LAW. 

The  third  article  of  the  Constitution  provides  for  a  jury  in  the 
trial  of  ' '  all  crimes,  except  in  cases  of  impeachment. ' '  The  word 
"crime,"  in  its  more  extended  sense,  comprehends  every  viola- 
tion of  public  law ;  in  a  limited  sense,  it  embraces  offenses  of  a 
serious  or  atrocious  character.  In  our  opinion,  the  provision  is 
to  be  interpreted  in  the  light  of  the  principles  which,  at  common 
law,  determined  whether  the  accused,  in  a  given  class  of  cases, 
was  entitled  to  be  tried  by  a  jury.  It  is  not  to  be  construed  as 
relating  only  to  felonies,  or  offenses  punishable  by  confinement 
in  the  penitentiary.  It  embraces  as  well  some  classes  of  misde- 
meanors, the  punishment  of  which  involves  or  may  involve  the 
deprivation  of  the  liberty  of  the  citizen.  It  would  be  a  narrow 
construction  of  the  Constitution  to  hold  that  no  prosecution  for 
a  misdemeanor  is  a  prosecution  for  a  "crime"  within  the  mean- 
ing of  the  third  article,  or  a  "  criminal  prosecution ' '  within  the 
meaning  of  the  Sixth  Amendment.  And  we  do  not  think  that 
the  amendment  was  intended  to  supplant  that  part  of  the  third 
article  which  relates  to  trial  by  jury.  There  is  no  necessary  con- 
flict between  them.  Mr.  Justice  Story  says  that  the  amendment, 
"in  declaring  that  the  accused  shall  enjoy  the  right  to  a  speedy 
and  public  trial  by  an  impartial  jury  of  the  State  or  district 
wherein  the  crime  shall  have  been  committed  (which  district  shall 
be  previously  ascertained  by  law),  and  to  be  informed  of  the 
nature  and  cause  of  the  accusation,  and  to  be  confronted  with  the 
witnesses  against  him,  does  but  follow  out  the  established  course 
of  the  common  law  in  all  trials  f of  crimes. ' '  Story  on  the  Con- 
stitution, §  1791.  And  as  the  guarantee  of  a  trial  by  jury,  in  the 
third  article,  implied  a  trial  in  that  mode  and  according  to  the 
settled  rules  of  the  common  law,  the  enumeration,  in  the  Sixth 
Amendment,  of  the  rights  of  the  accused  in  criminal  prosecu- 
tions, is  to  be  taken  as  a  declaration  of  what  those  rules  were,  and 
is  to  be  referred  to  the  anxiety  of  the  people  of  the  States  to  have 
in  the  supreme  law  of  the  land,  and  so  far  as  the  agencies  of  the 
General  Government  were  concerned,  a  full  and  distinct  recogni- 
tion of  those  rules,  as  involving  the  fundamental  rights  of  life, 
liberty,  and  property.  This  recognition  was  demanded  and  se- 
cured for  the  benefit  of  all  the  people  of  the  United  States,  as 
well  those  permanently  or  temporarily  residing  in  the  District 
of  Columbia,  as  those  residing  or  being  in  the  several  States. 
There  is  nothing  in  the  history  of  the  Constitution  or  of  the 
original  amendments  to  justify  the  assertion  that  the  people  of 
this  district  may  be  lawfully  deprived  of  the  benefit  of  any  of 
the  constitutional  guarantees  of  life,  liberty,  and  property — es- 


DOWNKS  v.  BIDWELI.  65 

pecially  of  the  privilege  of  trial  by  jury  in  criminal  cases.  In 
the  Draft  of  a  Constitution  reported  by  the  Committee  of  Five 
on  the  6th  of  August,  1787,  in  the  convention  which  framed  the 
•itution,  the  4th  section  of  Article  XI  read  that  "the  trial 
of  all  criminal  offenses  (except  in  cases  of  impeachment)  shall 
be  in  the  States  where  they  shall  be  committed ;  and  shall  be  by 
jury."  1  Elliott's  Deb.,  2d  ed.,  229.  But  that  article  was,  by 
unanimous  vote,  amended  so  as  to  read :  "The  trial  of  all  crimes 
(except  in  cases  of  impeachment)  shall  be  by  jury;  and  such 
trial  shall  be  held  in  the  State  where  the  said  crimes  shall  have 
been  committed ;  but  when  not  committed  within  any  State,  then 
th*>  trial  shall  be  at  such  place  or  places  as  the  legislature  may 
direct"  Id.  270.  The  object  of  thus  amending  the  section, 
Mr.  Madison  says,  was  "to  provide  for  trial  by  jury  of  offenses 
committed  out  of  any  State."  3  Madison  Papers,  144.  In  Rey- 
nolds v.  United  States,  98  U.  S.  145, 154,  it  was  taken  for  granted 
that  the  Sixth  Amendment  of  the  Constitution  secured  to  the 
people  of  the  Territories  the  right  of  trial  by  jury  in  criminal 
prosecutions ;  and  it  had  been  previously  held  in  Webster  v.  Reid, 
11  How.  437,  460,  that  the  Seventh  Amendment  secured  to  them 
a  like  right  in  civil  actions  at  common  law.  We  cannot  think 
that  the  people  of  this  district  have,  in  that  regard,  less  rights 
than  those  accorded  to  the  people  of  the  Territories  of  the 
United  States.  .  .  . 

The  judgment  is  reversed,  and  the  cause  remanded  with  direc- 
tions to  discharge  the  appellant  from  custody. 


DOWNES  v.  BIDWELL. 

SUPREME  COURT  or  THE  UNITED  STATES.    1901. 
182  U.  8.  244;  45  Lawy«r«'  Ed.  1088. 

Error  to  the  Circuit  Court  of  the  I'nit.  il  States  for  the  South- 
ern District  of  New  York. 

This  was  an  action  begun  in  the  Circuit  Court  by  Downea, 
doing  business  under  the  firm  name  of  S.  B.  Dowues  &  Co., 
against  the  collector  of  the  port  of  New  York,  to  recover  back 
duties  to  the  amount  of  $659.35  exacted  and  paid  under  pro- 
test upon  certain  oranges  consigned  to  the  plaintiff  at  New  York, 
and  brought  thither  from  the  port  of  San  Juan  in  the  Island  of 
Porto  Rico  during  the  month  of  November,  1900,  after  the  pas- 
sage of  the  act  temporarily  providing  a  civil  government  and 
revenues  for  the  Island  of  Porto  Rico,  known  as  the  Poraker  act. 
u-« 


66  CASES  ON  CONSTITUTIONAL  LAW. 

The  District  Attorney  demurred  to  the  complaint  for  the  want 
of  jurisdiction  in  the  court,  and  for  insufficiency  of  its  aver- 
ments. The  demurrer  was  sustained,  and  the  complaint  dis- 
missed. Whereupon  plaintiff  sued  out  this  writ  of  error.  .  .  . 

MB.  JUSTICE  BROWN,  after  making  the  above  statement,  an- 
nounced the  conclusion  and  judgment  of  the  court. 

This  case  involves  the  question  whether  merchandise  brought 
into  the  port  of  New  York  from  Porto  Rico  since  the  passage  of 
the  Foraker  act,  is  exempt  from  duty,  notwithstanding  the  third 
section  of  that  act,  which  requires  the  payment  of  "fifteen  per 
centum  of  the  duties  which  are  required  to  be  levied,  collected 
and  paid  upon  like  articles  of  merchandise  imported  from  for- 
eign countries."  .  .  . 

In  the  case  of  De  Lima  v.  Bidwell,  just  decided,  we  held  that 
upon  the  ratification  of  the  treaty  of  peace  with  Spain,  Porto 
Rico  ceased  to  be  a  foreign  country,  and  became  a  territory  of 
the  United  States,  and  that  duties  were  no  longer  collectible 
upon  merchandise  brought  from  that  island.  We  are  now  asked 
to  hold  that  it  became  a  part  of  the  United  States  within  that 
provision  of  the  Constitution  which  declares  that  "all  duties, 
imposts  and  excises  shall  be  uniform  throughout  the  United 
States."  (Art.  I,  §  8.)  If  Porto  Rico  be  a  part  of  the  United 
States,  the  Foraker  act  imposing  duties  upon  its  products  is 
unconstitutional,  not  only  by  reason  of  a  violation  of  the  uni- 
formity clause,  but  because  by  section  9  ' '  vessels  bound  to  or  from 
one  State"  cannot  "be  obliged  to  enter,  clear  or  pay  duties  in 
another. ' ' 

The  case  also  involves  the  broader  question  whether  the  reve- 
nue clauses  of  the  Constitution  extend  of  their  own  force  to  our 
newly  acquired  territories.  The  Constitution  itself  does  not  an- 
swer the  question.  Its  solution  must  be  found  in  the  nature  of 
the  government  created  by  that  instrument,  in  the  opinion  of 
its  contemporaries,  in  the  practical  construction  put  upon  it  by 
Congress  and  in  the  decisions  of  this  court.  .  .  . 

It  is  sufficient  to  observe  in  relation  to  these  three  fundamental 
instruments  [The  Articles  of  Confederation,  the  Ordinance  of 
1787,  and  the  Constitution]  that  it  can  nowhere  be  inferred  that 
the  territories  were  considered  a  part  of  the  United  States.  The 
Constitution  was  created  by  the  people  of  the  United  States, 
as  a  union  of  States,  to  be  governed  solely  by  representatives  of 
the  States;  and  even  the  provision  relied  upon  here,  that  all 
duties,  imposts  and  excises  shall  be  uniform  "throughout  the 


DOWNES  v.  BIDWELL.  67 

United  States,"  is  explained  by  subsequent  provisions  of  the  Con- 
stitution, that  "no  tax  or  duty  shall  be  laid  on  articles  exported 
from  any  State/'  and  "no  preference  shall  be  given  by  any 
regulation  of  commerce  or  revenue  to  the  ports  of  one  State 
over  those  of  another;  nor  shall  vessels  bound  to  or  from  one 
State  be  obliged  to  enter,  clear  or  pay  duties  in  another."  In 
short,  the  Constitution  deals  with  States,  their  people  and  their 
representatives. 

The  Thirteenth  Amendment  to  the  Constitution,  prohibiting 
slavery  and  involuntary  servitude  "within  the  United  States,  or 
in  any  place  subject  to  their  jurisdiction,"  is  also  significant  as 
showing  that  there  may  be  places  within  the  jurisdiction  of  the 
United  States  that  are  no  part  of  the  Union.  To  say  that  the 
phraseology  of  this  amendment  was  due  to  the  fact  that  it  was 
intended  to  prohibit  slavery  in  the  seceded  States,  under  a  possi- 
ble interpretation  that  those  States  were  no  longer  a  part  of  the 
Union,  is  to  confess  the  very  point  in  issue,  since  it  involves  an 
admission  that,  if  these  States  were  not  a  part  of  the  Union, 
they  were  still  subject  to  the  jurisdiction  of  the  United  States. 

Upon  the  other  hand,  the  Fourteenth  Amendment,  upon  the 
subject  of  citizenship,  declares  only  that  "all  persons  born  or 
naturalized  in  the  United  States,  and  subject  to  the  jurisdiction 
thereof,  are  citizens  of  the  United  States,  and  of  the  State 
wherein  they  reside."  Here  there  is  a  limitation  to  persons  born 
or  naturalized  in  the  United  States  which  is  not  extended  to  per- 
sons born  in  any  place  "subject  to  their  jurisdiction." 

The  question  of  the  legal  relations  between  the  States  and  the 
newly  acquired  territories  first  became  the  subject  of  public  dis- 
cussion in  connection  with  the  purchase  of  Louisiana  in  1803. 
.  .  .  It  is  well  known  that  Mr.  Jefferson  entertained  grave 
doubts  as  to  his  power  to  make  the  purchase,  or,  rather,  as  to 
his  right  to  annex  the  territory  and  make  it  part  of  the  United 
States,  and  had  instructed  Mr.  Livingston  to  make  no  agreement 
to  that  effect  in  the  treaty,  as  he  believed  it  could  not  be  legally 
done.  Owing  to  a  new  war  between  England  and  France  being 
upon  the  point  of  breaking  out,  there  was  need  for  haste  in  the 
negotiations,  and  Mr.  Livingston  took  the  responsibility  of  dis- 
obeying his  instructions,  and,  probably  owing  to  the  insistence 
of  Bonaparte,  consented  to  the  third  article  of  the  treaty,  which 
provided  that  "the  inhabitants  of  the  ceded  territory  shall  be 
incorporated  in  the  Union  of  the  United  States,  and  admitted 
as  soon  as  possible,  according  to  the  principles  of  the  Federal 
Constitution,  to  the  enjoyment  of  all  the  rights,  advantages  and 


68  CASES  ON  CONSTITUTIONAL  LAW. 

immunities  of  citizens  of  the  United  States;  and  in  the  mean- 
time they  shall  be  maintained  and  protected  in  the  free  enjoy- 
ment of  their  liberty,  property  and  the  religion  which  they 
profess."  This  evidently  committed  the  government  to  the  ulti- 
mate, but  not  to  the  immediate,  admission  of  Louisiana  as  a 
State,  and  postponed  its  incorporation  into  the  Union  to  the 
pleasure  of  Congress.  .  .  . 

The  raising  of  money  to  provide  for  the  purchase  of  this  terri- 
tory and  the  act  providing  a  civil  government  gave  rise  to  an 
animated  debate  in  Congress,  in  which  two  questions  were  promi- 
nently presented :  First,  whether  the  provision  for  the  ultimate 
incorporation  of  Louisiana  into  the  Union  was  constitutional; 
and,  second,  whether  the  seventh  article  of  the  treaty  admitting 
the  ships  of  Spain  and  France  for  the  next  twelve  years  "into 
the  ports  of  New  Orleans,  and  in  all  other  legal  ports  of  entry 
within  the  ceded  territory,  in  the  same  manner  as  the  ships  of 
the  United  States  coming  directly  from  France  or  Spain,  or  any 
of  their  colonies,  without  being  subject  to  any  other  or  greater 
duty  on  merchandise  or  other  or  greater  tonnage  than  that  paid 
by  the  citizens  of  the  United  States,"  was  an  unlawful  discrimi- 
nation in  favor  of  those  ports  and  an  infringement  upon  Art.  I, 
§  9,  of  the  Constitution,  that  "no  preference  shall  be  given  by  any 
regulation  of  commerce  or  revenue  to  the  ports  of  one  State  over 
those  of  another. ' '  This  article  of  the  treaty  contained  the  fur- 
ther stipulation  that ' '  during  the  space  of  time  above  mentioned 
no  other  nation  shall  have  a  right  to  the  same  privileges  in  the 
ports  of  the  ceded  territory;  .  .  .  and  it  is  well  understood 
that  the  object  of  the  above  article  is  to  favor  the  manufactures, 
commerce,  freight  and  navigation  of  France  and  Spain. "... 

As  a  sequence  to  this  debate  two  bills  were  passed,  one  October 
31,  1803,  2  Stat.  245,  authorizing  the  President  to  take  posses- 
sion of  the  territory,  and  to  continue  the  existing  government, 
and  the  other  November  10,  1803,  2  Stat.  245,  making  provision 
for  the  payment  of  the  purchase  price.  These  acts  continued  in 
force  until  March  26,  1804,  when  a  new  act  was  passed  provid- 
ing for  a  temporary  government,  2  Stat.  283,  c.  38,  and  vesting 
all  legislative  powers  in  a  governor  and  legislative  council,  to 
be  appointed  by  the  President.  These  statutes  may  be  taken  as 
expressing  the  view  of  Congress,  first,  that  territory  may  be  law- 
fully acquired  by  treaty,  with  a  provision  for  its  ultimate  incor- 
poration into  the  Union;  and,  second,  that  a  discrimination  in 
favor  of  certain  foreign  vessels  trading  with  the  ports  of  a  newly 
acquired  territory  is  no  violation  of  that  clause  of  the  Consti- 


DOWNES  v.  BIDWELL.  69 

tution,  Art  I,  §  9,  that  declares  that  no  preference  shall  be  given 
to  the  ports  of  one  State  over  those  of  another.  It  is  evident  that 
the  constitutionality  of  this  discrimination  can  only  be  supported 
upon  the  theory  that  ports  of  territories  are  not  ports  of  States 
within  the  meaning  of  the  Constitution. 

The  same  construction  was  adhered  to  in  the  treaty  with  Spain 
for  the  purchase  of  Florida,  8  Stat  252,  the  sixth  article  of 
which  provided  that  the  inhabitants  should  "be  incorporated 
into  the  Union  of  the  United  States,  as  soon  as  may  be  consistent 
with  the  principles  of  the  Federal  Constitution";  and  the  fif- 
teenth article  of  which  agreed  that  Spanish  vessels  coming 
directly  from  Spanish  ports  and  laden  with  productions  of  Span- 
ish growth  or  manufacture,  should  be  admitted,  for  the  term  of 
twelve  years,  to  the  ports  of  Pensacola  and  St.  Augustine, 
"without  paying  other  or  higher  duties  on  their  cargoes,  or  of 
tonnage,  than  will  be  paid  by  the  vessels  of  the  United  States," 
and  that  "during  the  said  term  no  other  nation  shall  enjoy 
the  same  privileges  within  the  ceded  territories." 

So,  too,  in  the  act  annexing  the  Republic  of  Hawaii,  there  was 
a  provision  continuing  in  effect  the  customs  relations  of  the 
Hawaiian  Islands  with  the  United  States  and  other  countries, 
the  effect  of  which  was  to  compel  the  collection  in  those  islands 
of  a  duty  upon  certain  articles,  whether  coming  from  the  United 
States  or  other  countries,  much  greater  than  the  duty  provided 
by  the  general  tariff  laws  then  in  force.  This  was  a  discrimina- 
tion against  the  Hawaiian  ports  wholly  inconsistent  with  the 
revenue  clauses  of  the  Constitution,  if  such  clauses  were  there 
operative. 

The  very  treaty  with  Spain  under  discussion  in  this  case  con- 
tains similar  discriminative  provisions,  which  are  apparently 
irreconcilable  with  the  Constitution,  if  that  instrument  be  held 
to  extend  to  these  islands  immediately  upon  their  cession  to  the 
United  States.  By  Art.  IV  the  United  States  agree  "for  the 
term  of  ten  years  from  the  date  of  the  exchange  of  the  ratifica- 
tions of  the  present  treaty,  to  admit  Spanish  ships  and  merchan- 
dise to  the  ports  of  the  Philippine  Islands  on  the  same  terms  as 
ships  and  merchandise  of  the  United  States" — a  privilege  not 
extending  to  any  other  ports.  It  was  a  clear  breach  of  the  uni- 
formity clause  in  question,  and  a  manifest  excess  of  authority 
on  the  part  of  the  commissioners,  if  ports  of  the  Philippine  Is- 
lands be  ports  of  the  United  States. 

So,  too,  by  Art  XIII,  "Spanish  scientific,  literary  and  artistic 
works  .  .  .  shall  be  continued  to  be  admitted  free  of  duty 


70  CASES  ON  CONSTITUTIONAL  LAW. 

in  such  territories,  for  the  period  of  ten  years,  to  be  reckoned 
from  the  date  of  the  exchange  of  the  ratifications  of  this  treaty. ' ' 
This  is  also  a  clear  discrimination  in  favor  of  Spanish  literary 
productions  into  particular  ports. 

Notwithstanding  these  provisions  for  the  incorporation  of  ter- 
ritories into  the  Union,  Congress,  not  only  in  organizing  the  ter- 
ritory of  Louisiana  by  act  of  March  26,  1804,  but  all  other 
territories  carved  out  of  this  vast  inheritance,  has  assumed  that 
the  Constitution  did  not  extend  to  them  of  its  own  force,  and  has 
in  each  case  made  special  provision,  either  that  their  legisla- 
tures shall  pass  no  law  inconsistent  with  the  Constitution  of  the 
United  States,  or  that  the  Constitution  or  laws  of  the  United 
States  shall  be  the  supreme  law  of  such  territories.  Finally,  in 
Kev.  Stat.  §1891,  a  general  provision  was  enacted  that  "the 
Constitution  and  all  laws  of  the  United  States  which  are  not 
locally  inapplicable  shall  have  the  same  force  and  effect  within 
all  the  organized  territories,  and  in  every  territory  hereafter 
organized,  as  elsewhere  within  the  United  States." 

So,  too,  on  March  6,  1820,  3  Stat.  545,  c.  22,  in  an  act  author- 
izing the  people  of  Missouri  to  form  a  state  government,  after  a- 
heated  debate,  Congress  declared  that  in  the  territory  of  Lou- 
isiana north  of  36°  30'  slavery  should  be  forever  prohibited.  It 
is  true  that  for  reasons  which  have  become  historical,  this  act 
was  declared  to  be  unconstitutional  in  Scott  v.  Sandf ord,  19  How. 
393,  but  it  is  none  the  less  a  distinct  annunciation  by  Congress  of 
power  over  property  in  the  territories  which  it  obviously  did  not 
possess  in  the  several  States. 

The  researches  of  counsel,  have  collated  a  large  number  of 
other  instances,  in  which  Congress  has  in  its  enactments  recog- 
nized the  fact  that  provisions  intended  for  the  States  did  not 
embrace  the  territories,  unless  specially  mentioned.  These  are 
found  in  the  laws  prohibiting  the  slave  trade  with  "the  United 
States  or  territories  thereof " ;  or  equipping  ships  ' '  in  any  port 
or  place  within  the  jurisdiction  of  the  United  States";  in  the 
internal  revenue  laws,  in  the  early  ones  of  which  no  provision 
was  made  for  the  collection  of  taxes  in  the  territory  not  included 
within  the  boundaries  of  the  existing  States,  and  others  of  which 
extended  them  expressly  to  the  territories,  or  "within  the  exte- 
rior boundaries  of  the  United  States";*  and  in  the  acts  extend- 
ing the  internal  revenue  laws  to  the  Territories  of  Alaska  and 
Oklahoma.  It  would  prolong  this  opinion  unnecessarily  to  set 
forth  the  provisions  of  these  acts  in  detail.  It  is  sufficient  to 
say  that  Congress  has  or  has  not  applied  the  revenue  laws  to  the 


DOWNES  v.  BIDWELL.  71 

territories,  as  the  circumstances  of  each  case  seemed  to  require, 
and  has  specifically  legislated  for  the  territories  whenever  it 
was  its  intention  to  execute  laws  beyond  thje  limits  of  the  States. 
Indeed,  whatever  may  have  been  the  fluctuations  of  opinion  in 
other  bodies,  (and  even  this  court  has  not  been  exempt  from 
them,)  Congress  has  been  consistent  in  recognizing  the  differ- 
ence between  the  States  and  territories  under  the  Constitution. 

The  decisions  of  this  court  upon  this  subject  have  not  been 
altogether  harmonious.  Some  of  them  are  based  upon  the  theory 
that  the  Constitution  does  not  apply  to  the  territories  without 
legislation.  Other  cases,  arising  from  territories  where  such 
legislation  has  been  had,  contain  language  which  would  justify 
the  inference  that  such  legislation  was  unnecessary,  and  that  the 
Constitution  took  effect  immediately  upon  the  cession  of  the  terri- 
tory to  the  United  States.  It  may  be  remarked,  upon  the  thresh- 
old of  an  analysis  of  these  cases,  that  too  much  weight  must  not 
be  given  to  general  expressions  found  in  several  opinions  that 
the  power  of  Congress  over  territories  is  complete  and  supreme, 
because  these  words  may  be  interpreted  as  meaning  only  supreme 
under  the  Constitution ;  nor  upon  the  other  hand,  to  general  state- 
ments that  the  Constitution  covers  the  territories  as  well  as  the 
States,  since  in  such  cases  it  will  be  found  that  acts  of  Congress 
had  already  extended  the  Constitution  to  such  territories,  and 
that  thereby  it  subordinated  not  only  its  own  acts,  but  those  of 
the  territorial  legislatures,  to  what  had  become  the  supreme  law 
of  the  land.  .  .  . 

[Here  follows  a  consideration  of  the  cases  of  Hepburn  v.  Ell- 
zey,  2  Cranch,  445 ;  New  Orleans  v.  Winter,  1  Wheaton,  91 ;  Scott 
v.  Jones,  5  Howard,  343;  Miners'  Bank  v.  Iowa,  12  Howard,  1; 
Barney  v.  Baltimore  City,  6  Wallace,  280;  Hooe  v.  Jamieson, 
166  U.  S.  395 ;  Loughborough  v.  Blake,  5  Wheaton,  317 ;  Callan 
v.  Wilson,  127  U.  S.  540;  Geofroy  v.  Riggs,  133  U.  S.  258; 
American  Insurance  Co.  v.  Canter,  1  Peters,  511;  Benner  v. 
Porter,  9  Howard,  235;  Clinton  v.  Englebrecht,  13  Wallace,  434; 
Good  v.  Martin.  95  U.  S.  90;  McAllister  v.  United  States.  Ill 
U.  S.  174;  McCulloch  v.  Maryland,  4  Wheaton,  316;  United 
States  v.  Gratiot,  14  Peters,  526;  Mormon  Church  v.  United 
Statea,  136  U.  S.  1;  National  Bank  v.  County  of  Yankton,  inl 
U.  S.  129;  Murphy  v.  Ramsey,  114  U.  S.  15;  Webster  v.  Reid,  11 
Howard,  437;  Reynolds  v.  Unit.,!  98  U.  S.  145;  ROM'S 

Case,  140  U.  S.  453;  American  Publishing  Co.  v.  Fisher,  166  U.  S. 
464 ;  and  Thompson  v.  Utah,  170  U.  S.  343.] 

Eliminating,  then,  from  the  opinion  of  this  court  all  expres- 


72  CASES  ON  CONSTITUTIONAL  LAW. 

sions  unnecessary  to  the  disposition  of  the  particular  case,  and 
gleaning  therefrom  the  exact  point  decided  in  each,  the  follow- 
ing propositions  may  be  considered  as  established: 

1.  That  the  District  of  Columbia  and  the  territories  are  not 
States,  within  the  judicial  clause  of  the  Constitution  giving  juris- 
diction in  cases  between  citizens  of  different  States; 

2.  That  territories  are  not  States,  within  the  meaning  of  Re- 
vised Statutes,  §  709,  permitting  writs  of  error  from  this  court 
in  cases  where  the  validity  of  a  state  statute  is  drawn  in  ques- 
tion; 

3.  That  the  District  of  Columbia  and  the  territories  are  States, 
as  that  word  is  used  in  treaties  with  foreign  powers,  with  re- 
spect to  the  ownership,  disposition  and  inheritance  of  property ; 

4.  That  the  territories  are  not  within  the  clause  of  the  Con- 
stitution providing  for  the  creation  of  a  Supreme  Court  and 
such  inferior  courts  as  Congress  may  see  fit  to  establish; 

5.  That  the  Constitution  does  not  apply  to  foreign  countries  or 
to  trials  therein  conducted,  and  that   Congress  may  lawfully 
provide  for  such  trials  before  consular  tribunals,  without  the 
intervention  of  a  grand  or  petit  jury; 

6.  That  where  the  Constitution  has  been  once  formally  ex- 
tended by  Congress  to  territories,  neither  Congress  nor  the  ter- 
ritorial legislature  can  enact  laws  inconsistent  therewith.     .     .    . 

[Here  follows  an  analysis  of  the  Dred  Scott  case.] 
While  there  is  much  in  the  opinion  of  the  Chief  Justice  [in 
the  Dred  Scott  case]  which  tends  to  prove  that  he  thought  all  the 
provisions  of  the  Constitution  extended  of  their  own  force  to  the 
territories  west  of  the  Mississippi,  the  question  actually  decided 
is  readily  distinguishable  from  the  one  involved  in  the  case  under 
consideration.  The  power  to  prohibit  slavery  in  the  territories 
is  so  different  from  the  power  to  impose  duties  upon  territorial 
products,  and  depends  upon  such  different  provisions  of  the  Con- 
stitution, that  they  can  scarcely  be  considered  as  analogous,  un- 
less we  assume  broadly  that  every  clause  of  the  Constitution 
attaches  to  the  territories  as  well  as  to  the  States — a  claim  quite 
inconsistent  with  the  position  of  the  court  in  the  Canter  case- 
If  the  assumption  be  true,  that  slaves  are  indistinguishable  from 
other  property,  the  inference  from  the  Dred  Scott  case  is  irre- 
sistible that  Congress  had  no  power  to  prohibit  their  introduc- 
tion into  a  territory.  .  .  .  The  difficulty  with  the  Dred  Scott 
case  was  that  the  court  refused  to  make  a  distinction  between 
property  in  general  and  a  wholly  exceptional  class  of  property. 
Mr.  Benton  tersely  stated  the  distinction  by  saying  that  the 


DOWNES  v.  BIDWELL.  73 

Virginian  might  carry  his  slave  into  the  territories,  but  he  could 
not  carry  with  him  the  Virginian  law  which  made  him  a  slave. 

To  sustain  the  judgment  in  the  case  under  consideration  it  by 
no  means  becomes  necessary  to  show  that  none  of  the  articles  of 
the  Constitution  apply  to  the  Island  of  Porto  Rico.  There  is  a 
clear  distinction  between  such  prohibitions  as  go  to  the  very  root 
of  the  power  of  Congress  to  act  at  all,  irrespective  of  time  or 
place,  and  such  as  are  operative  only  "throughout  the  United 
States"  or  among  the  several  States. 

Thus,  when  the  Constitution  declares  that  "no  bill  of  attainder 
or  ex  post  facto  law  shall  be  passed,"  and  that  "no  title  of  nobil- 
ity shall  be  granted  by  the  United  States,"  it  goes  to  the  com- 
petency of  Congress  to  pass  a  bill  of  that  description.  Perhaps, 
the  same  remark  may  apply  to  the  First  Amendment,  that ' '  Con- 
gress shall  make  no  law  respecting  an  establishment  of  religion, 
or  prohibiting  the  free  exercise  thereof;  or  abridging  the  free- 
dom of  speech,  -or  of  the  press ;  or  the  right  of  the  people  to 
peacefully  assemble,  and  to  petition  the  government  for  a  redress 
of  grievances."  We  do  not  wish,  however,  to  be  understood  as 
expressing  an  opinion  how  far  the  bill  of  rights  contained  in 
the  first  eight  amendments  is  of  general  and  how  far  of  local 
application. 

Upon  the  other  hand,  when  the  Constitution  declares  that  all 
duties  shall  be  uniform  "throughout  the  United  States,"  it  be- 
comes necessary  to  inquire  whether  there  be  any  territory  over 
which  Congress  has  jurisdiction  which  is  not  a  part  of  the 
"United  States,"  by  which  term  we  understand  the  States  whose 
people  united  to  form  the  Constitution,  and  such  as  have  since 
been  admitted  to  the  Union  upon  an  equality  with  them.  Not 
only  did  the  people  in  adopting  the  Thirteenth  Amendment  thus 
recognize  a  distinction  between  the  United  States  and  "any  place 
subject  to  their  jurisdiction,"  but  Congress  itself,  in  the  act  of 
March  27,  1804,  c.  56,  2  Stat.  298,  providing  for  the  proof  of 
public  records,  applied  the  provisions  of  the  act  not  only  to 
"every  court  and  office  within  the  United  States,"  but  to  the 
"courts  and  offices  of  the  respective  territories  of  the  United 
States  and  countries  subject  to  the  jurisdiction  of  the  United 
States,"  as  to  the  courts  and  offices  of  the  several  States.  .  .  . 

Unless  these  words  are  to  be  rejected  as  meaningless,  we  must 
treat  them  as  a  recognition  by  Congress  of  the  fact  that  there 
may  be  territories  subject  to  the  jurisdiction  of  the  United  States, 
which  are  not  of  the  United  State*. 


74  CASES  ON  CONSTITUTIONAL  LAW. 

In  determining  the  meaning  of  the  words  of  Art.  I,  §  6,  "  uni- 
form throughout  the  United  States,"  we  are  bound  to  consider 
not  only  the  provisions  forbidding  preference  being  given  to  the 
ports  of  one  State  over  those  of  another  (to  which  attention 
has  already  been  called),  but  the  other  clauses  declaring  that  no 
tax  or  duty  shall  be  laid  on  articles  exported  from  any  State,  and 
that  no  State  shall,  without  the  consent  of  Congress,  lay  any 
imposts  or  duties  upon  imports  or  exports,  nor  any  duty  on  ton- 
nage. The  object  of  all  of  these  was  to  protect  the  States  which 
united  in  forming  the  Constitution  from  discriminations  by  Con- 
gress, which  would  operate  unfairly  or  injuriously  upon  some 
States  and  not  equally  upon  others.  .  .  .  Thus  construed  to- 
gether, the  purpose  is  irresistible  that  the  words  "throughout 
the  United  States ' '  are  indistinguishable  from  the  words  ' '  among 
or  between  the  several  States,"  and  that  these  prohibitions  were 
intended  to  apply  only  to  commerce  between  ports  of  the  several 
States  as  they  then  existed  or  should  thereafter  be  admitted  to 
the  Union. 

Indeed,  the  practical  interpretation  put  by  Congress  upon  the 
Constitution  has  been  long  continued  and  uniform  to  the  effect 
that  the  Constitution  is  applicable  to  territories  acquired  by  pur- 
chase or  conquest  only  when  and  so  far  as  Congress  shall  so 
direct.  Notwithstanding  its  duty  to  "guarantee  to  every  State 
in  this  Union  a  republican  form  of  government, ' '  Art.  IV,  §  4, 
by  which  we  understand,  according  to  the  definition  of  "Webster, 
' '  a  government  in  which  the  supreme  power  resides  in  the  whole 
body  of  the  people,  and  is  exercised  by  representatives  elected  by 
them,"  Congress  did  not  hesitate,  in  the  original  organization 
of  the  territories  of  Louisiana,  Florida,  the  Northwest  Territory, 
and  its  subdivisions  of  Ohio,  Indiana,  Michigan,  Illinois  and 
"Wisconsin,  and  still  more  recently  in  the  case  of  Alaska,  to  estab- 
lish a  form  of  government  bearing  a  much  greater  analogy  to  a 
British  crown  colony  than  a  republican  State  of  America,  and  to 
vest  the  legislative  power  either  in*  a  governor  and  council,  or  a 
governor  and  judges,  to  be  appointed  by  the  President.  It  was 
not  until  they  had  attained  a  certain  population  that  power  was 
given  them  to  organize  a  legislature  by  vote  of  the  people.  In 
all  these  cases,  as  well  as  in  territories  subsequently  organized 
west  of  the  Mississippi,  Congress  thought  it  necessary  either  to 
extend  the  Constitution  and  laws  of  the  United  States  over  them, 
or  to  declare  that  the  inhabitants  should  be  entitled  to  enjoy 
the  right  of  trial  by  jury,  of  bail,  and  of  the  privilege  of  the  writ 
of  habeas  corpus,  as  well  as  other  privileges  of  the  bill  of  rights. 


DOWNKS  v.  BIDWKLL.  75 

We  are  also  of  opinion  that  the  power  to  acquire  territory  by 
treaty  implies  not  only  the  power  to  govern  such  territory,  but 
to  prescribe  upon  what  terms  the  I'nitnl  States  will  receive  its 
inhabitants,  and  what  their  status  shall  be  in  what  Chief  Justice 
Marshall  termed  the  "American  Empire."  There  seems  to  be 
no  middle  ground  between  this  position  and  the  doctrine  that  if 
their  inhabitants  do  not  become,  immediately  upon  annexation, 
citizens  of  the  United  States,  their  children  thereafter  born, 
whether  savages  or  civilized,  are  such,  and  entitled  to  all  the 
rights,  privileges  and  immunities  of  citizens.  If  such  be  their 
status,  the  consequences  will  be  extremely  serious.  Indeed,  it  is 
doubtful  if  Congress  would  ever  assent  to  the  annexation  of 
territory  upon  the  condition  that  its  inhabitants,  however  for- 
eign they  may  be  to  our  habits,  traditions  and  modes  of  life, 
shall  become  at  once  citizens  of  the  United  Slates.  In  all  its 
treaties  hitherto  the  treaty-making  power  has  made  special  pro- 
vision for  this  subject;  in  the  cases  of  Louisiana  and  Florida, 
by  stipulating  that  "the  inhabitants  shall  be  incorporated  into 
the  Union  of  the  United  States  and  admitted  as  soon  as  possible 
.  .  .  to  the  enjoyment  of  all  the  rights,  advantages  and  immu- 
nities of  citizens  of  the  United  States";  in  the  case  of  Mexico, 
that  they  should  "be  incorporated  into  the  Union,  and  be  ad- 
mitted at  the  proper  time  (to  be  judged  of  by  the  Congress  of 
the  United  States),  to  the  enjoyment  of  all  the  rights  of  citizens 
of  the  United  States" ;  in  the  case  of  Alaska,  that  the  inhabitants 
who  remained  three  years,  "with  the  exception  of  uncivilized 
native  tribes,  shall  be  admitted  to  the  enjoyment  of  all  the 
rights,"  etc.;  and  in  the  case  of  Porto  Rico  and  the  Philippines, 
"that  the  civil  rights  and  political  status  of  the  native  inhab- 
itants .  .  .  shall  be  determined  by  Congress."  In  all  these 
cases  there  is  an  implied  denial  of  the  right  of  the  inhabitants 
to  American  citizenship  until  Congress  by  further  action  shall 
signify  its  assent  thereto.  .  .  . 

We  suggest,  without  intending  to  decide,  that  there  may  be 
a  distinction  between  certain  natural  rights,  enforced  in  the  Con- 
stitution by  prohibitions  against  interference  with  them,  and 
what  may  be  termed  artificial  or  remedial  rights,  which  are 
peculiar  to  our  own  system  of  jurisprudence.  Of  the  former 
class  are  the  rights  to  one's  own  religious  opinions  and  to  a  pub- 
lic expression  of  them,  or,  as  sometimes  said,  to  worship  Qod 
according  to  the  dictates  of  one's  own  conscience;  the  right  to 
personal  liberty  ami  individual  property;  to  freedom  of  speech 
and  of  the  press;  to  free  access  to  courts  of  justice,  to  due  proc- 


76  CASES  ON  CONSTITUTIONAL  LAW. 

ess  of  law  and  to  an  equal  protection  of  the  laws ;  to  immunities 
from  unreasonable  searches  and  seizures,  as  well  as  cruel  and  un- 
usual punishments;  and  to  such  other  immunities  as  are  indis- 
pensable to  a  free  government.  Of  the  latter  class  are  the  rights 
to  citizenship,  to  suffrage,  Minor  v.  Happersett,  21  Wall.  162, 
and  to  the  particular  methods  of  procedure  pointed  out  in  the 
Constitution,  which  are  peculiar  to  Anglo-Saxon  jurisprudence, 
and  some  of  which  have  already  been  held  by  the  States  to  be  un- 
necessary to  the  proper  protection  of  individuals. 

Whatever  may  be  finally  decided  by  the  American  people  as 
to  the  status  of  these  islands  and  their  inhabitants — whether  they 
shall  be  introduced  into  the  sisterhood  of  States  or  be  permitted 
to  form  independent  governments — it  does  not  follow  that,  in  the 
meantime,  awaiting  that  decision,  the  people  are  in  the  matter 
of  personal  rights  unprotected  by  the  provisions  of  our  Constitu- 
tion, and  subject  to  the  merely  arbitrary  control  of  Congress. 
Even  if  regarded  as  aliens,  they  are  entitled  under  the  princi- 
ples of  the  Constitution  to  be  protected  in  life,  liberty  and  prop- 
erty. This  has  been  frequently  held  by  this  court  in  respect  to 
the  Chinese,  even  when  aliens,  not  possessed  of  the  political  rights 
of  citizens  of  the  United  States.  Yick  Wo.  v.  Hopkins,  118  U.  S. 
356 ;  Fong  Yue  Ting  v.  United  States,  149  U.  S.  698 ;  Lem  Moon 
Sing,  158  U.  S.  538,  547;  Wong  Wing  v.  United  States,  163  U.  S. 
228.  We  do  not  desire,  however,  to  anticipate  the  difficulties 
which  would  naturally  arise  in  this  connection,  but  merely  to 
disclaim  any  intention  to  hold  that  the  inhabitants  of  these 
territories  are  subject  to  an  unrestrained  power  on  the  part  of 
Congress  to  deal  with  them  upon  the  theory  that  they  have  no 
rights  which  it  is  bound  to  respect.  .  .  . 

In  passing  upon  the  questions  involved  in  this  case  and  kindred 
cases,  we  ought  not  to  overlook  the  fact  that,  while  the  Consti- 
tution was  intended  to  establish  a  permanent  form  of  govern- 
ment for  the  States  which  should  elect  to  take  advantage  of  its 
conditions,  and  continue  for  an  indefinite  future,  the  vast  possi- 
bilities of  that  future  could  never  have  entered  the  minds  of  its 
framers.  The  States  had  but  recently  emerged  from  a  war  with 
one  of  the  most  powerful  nations  of  Europe ;  were  disheartened 
by  the  failure  of  the  confederacy,  and  were  doubtful  as  to  the 
feasibility  of  a  stronger  union.  Their  territory  was  confined  to 
a  narrow  strip  of  land  on  the  Atlantic  coast  from  Canada  to 
Florida,  with  a  somewhat  indefinite  claim  to  territory  beyond 
the  Alleghenies,  where  their  sovereignty  was  disputed  by  tribes 
of  hostile  Indians  supported,  as  was  popularly  believed,  by  the 


DOWNES  v.  BIDWELL.  77 

British,  who  had  never  formally  delivered  possession  under  the 
treaty  of  peace.  The  vast  territory  beyond  the  Mississippi,  which 
formerly  had  been  claimed  by  France,  since  1762  had  belonged 
to  Spain,  still  a  powerful  nation,  and  the  owner  of  a  great  part 
of  the  Western  Hemisphere.  Under  these  circumstances  it  is 
little  wonder  that  the  question  of  annexing  these  territories  was 
not  made  a  subject  of  debate.  The  difficulties  of  bringing  about 
a  union  of  the  States  were  so  great,  the  objections  to  it  seemed 
so  formidable,  that  the  whole  thought  of  the  convention  centered 
upon  surmounting  these  obstacles.  The  question  of  territories 
was  dismissed  with  a  single  clause,  apparently  applicable  only 
to  the  territories  then  existing,  giving  Congress  the  power  to 
govern  and  dispose  of  them. 

Had  the  acquisition  of  other  territories  been  contemplated  as 
a  possibility,  could  it  have  been  foreseen  that,  within  little  more 
than  one  hundred  years,  we  were  destined  to  acquire  not  only  the 
whole  vast  region  between  the  Atlantic  and  Pacific  Oceans,  but 
the  Russian  possessions  in  America  and  distant  islands  in  the 
Pacific,  it  is  incredible  that  no  provision  should  have  been  made 
for  them,  and  the  question  whether  the  Constitution  should  or 
should  not  extend  to  them  have  been  definitely  settled.  If  it  be 
once  conceded  that  we  are  at  liberty  to  acquire  foreign  territory, 
a  presumption  arises  that  our  power  with  respect  to  such  terri- 
tories is  the  same  power  which  other  nations  have  been  accus- 
tomed to  exercise  with  respect  to  territories  acquired  by  them. 
If,  in  limiting  the  power  which  Congress  was  to  exercise  within 
the  United  States,  it  was  also  intended  to  limit  it  with  regard 
to  such  territories  as  the  people  of  the  United  States  should 
thereafter  acquire,  such  limitations  should  have  been  expressed. 
Instead  of  that,  we  find  the  Constitution  speaking  only  to  States, 
except  in  the  territorial  clause,  which  is  absolute  in  its  terms, 
and  suggestive  of  no  limitations  upon  the  power  of  Congress  in 
dealing  with  them.  The  States  could  only  delegate  to  Congress 
such  powers  as  they  themselves  possessed,  and  as  they  had  no 
power  to  acquire  new  territory  they  had  none  to  delegate  in  that 
connection.  The  logical  inference  from  this  is,  that  if  Congress 
had  power  to  acquire  new  territory,  which  is  conceded,  that 
power  was  not  hampered  by  the  constitutional  provisions.  If, 
upon  the  other  hand,  we  assume  that  the  territorial  clause  of 
the  Constitution  was  not  intended  to  be  restricted  to  such  terri- 
tory as  the  United  States  then  possessed,  there  is  nothing  in  the 
Constitution  to  indicate  that  the  power  of  Congress  in  dealing 


78  CASES  ON  CONSTITUTIONAL  LAW. 

with  them  was  intended  to  be  restricted  by  any  of  the  other 
provisions. 

There  is  a  provision  that  "new  States  may  be  admitted  by 
the  Congress  into  this  Union."  These  words,  of  course,  carry 
the  Constitution  with  them,  but  nothing  is  said  regarding  the 
acquisition  of  new  territories  or  the  extension  of  the  Constitution 
over  them.  The  liberality  of  Congress  in  legislating  the  Con- 
stitution into  all  our  contiguous  territories  has  undoubtedly  fos- 
tered the  impression  that  it  went  there  by  its  own  force,  but  there 
is  nothing  in  the  Constitution  itself,  and  little  in  the  interpre- 
tation put  upon  it,  to  confirm  that  impression.  There  is  not 
even  an  analogy  to  the  provisions  of  an  ordinary  mortgage  for 
its  attachment  to  after-acquired  property,  without  which  it  cov- 
ers only  property  existing  at  the  date  of  the  mortgage.  In  short, 
there  is  absolute  silence  upon  the  subject.  The  executive  and 
legislative  departments  of  the  government  have  for  more  than 
a  century  interpreted  this  silence  as  precluding  the  idea  that 
the  Constitution  attached  to  these  territories  as  soon  as  acquired, 
and  unless  such  interpretation  be  manifestly  contrary  to  the 
letter  or  spirit  of  the  Constitution,  it  should  be  followed  by  the 
judicial  department.  Cooley's  Consti.  Lim.,  sees.  81  to  85. 
Burrow-Giles  Lithographic  Co.  v.  Sarony,  111  U.  S.  53,  57 ;  Field 
v.  Clark,  143  U.  S.  649,  691.  .  .  . 

"We  are  therefore  of  opinion  that  the  Island  of  Porto  Rico  is 
a  territory  appurtenant  and  belonging  to  the  United  States,  but 
not  a  part  of  the  United  States  within  the  revenue  clauses  of 
the  Constitution ;  that  the  Foraker  act  is  constitutional,  so  far  as 
it  imposes  duties  upon  imports  from  such  island,  and  that  the 
plaintiff  cannot  recover  back  the  duties  exacted  in  this  case. 

The  judgment  of  the  Circuit  Court  is  therefore 

Affirmed. 

[MR.  JUSTICE  WHITE  delivered  a  concurring  opinion,  in  which 
ME.  JUSTICE  SHIKAS  and  MR.  JUSTICE  MCKENNA  joined.  MR. 
JUSTICE  GRAY  also  delivered  a  concurring  opinion.  MR.  CHIEF 
JUSTICE  FULLER  delivered  a  dissenting  opinion  in  which  MR. 
JUSTICE  HARLAN,  MR.  JUSTICE  BREWER  and  MR.  JUSTICE  PECK- 
HAM  concurred.  MR.  JUSTICE  HARLAN  also  delivered  a  separate 
dissenting  opinion.] 

NOTE. — As  to  the  operation  of  the  guarantees  of  the  Constitution  in  the 
court  of  an  American  consul  in  China,  see  In  re  Eoss  (1890),  140  U.  S.  453; 


DOWNES  v.  BIDWELL.  79 

in  the  government  of  an  Indian  tribe,  0ee  Talton  v.  Mayea  (1896),  163  U.  8. 
376;  in  territory  which  baa  been  made  part  of  the  United  States,  aee  Thomp- 
son v.  Utah  (1898),  170  U.  8.  343;  Raamuaaen  v.  United  States  (1905),  197 
U.  8.  516;  in  territory  not  incorporated  in  the  United  States,  see  Hawaii  v. 
Mankichi  (1903),  190  U.  8.  197,  Dorr  v.  United  States  (1904),  195  U.  8.  138. 


CHAPTER  II. 

CITIZENSHIP  IN  THE  UNITED  STATES. 
SECTION  1.    WHO  ARE  CITIZENS. 

All  persons  born  or  naturalized  in  the  United  States,  and  subject 
to  the  jurisdiction  thereof,  are  citizens  of  the  United  States  and  of 
the  State  wherein  they  reside. 

Constitution  of  the  United  States,  Amendment  XIV,  sec.  1. 

DEED  SCOTT,  PLAINTIFF  IN  ERROR,  v.  JOHN  F.  A.  SAND- 
FORD. 

SUPREME  COURT  OF  THE  UNITED  STATES.    1857. 
19  Howard,  393;  15  Lawyers'  Ed.  691. 

This  case  was  brought  up,  by  writ  of  error,  from  the  Circuit 
Court  of  the  United  States  for  the  district  of  Missouri.  .  .  . 
[In  1834,  Dred  Scott,  a  negro  slave  belonging  to  Dr.  Emerson,  a 
surgeon  in  the  United  States  army,  was  taken  by  his  master  from 
Missouri  to  Rock  Island,  Illinois,  where  slavery  was  prohibited 
by  statute.  Thence  he  was  taken,  in  1836,  to  Fort  Snelling,  in 
the  territory  of  upper  Louisiana.  This  post  was  situated  on  the 
west  bank  of  the  Mississippi,  north  of  latitude  36°  30',  and  north 
of  Missouri,  and  hence  within  the  territory  in  which  slavery  had 
been  forbidden  by  the  Missouri  Compromise.  In  1836,  with  the 
consent  of  their  master,  Drfed  and  Harriet  were  married.  In 
1838,  Dr.  Emerson  returned  with  his  slaves  to  Missouri.  In  1847, 
Dred  brought  suit  in  the  Missouri  circuit  court  to  recover  his 
freedom,  having  discovered  that  according  to  previous  decisions 
of  Missouri  courts,  residence  in  free  territory  conferred  free- 
dom. Judgment  was  rendered  in  his  favor,  but  was  reversed  by 
the  Missouri  Supreme  Court.  Before  the  commencement  of  the 
present  suit,  Dred  and  his  wife  and  two  children  were  sold  to 
Sandford,  a  citizen  of  New  York.  Scott  having  brought  suit  in 
trespass  for  assault  and  battery  against  Sandford  in  the  Federal 
Circuit  Court  of  Missouri,  Sandford  pleaded  to  the  jurisdiction 
of  the  court  that  this  could  not  be  a  suit  between  citizens  of  dif- 
ferent States,  because  Scott  was  not  a  citizen  of  Missouri,  but 
"a  negro  of  pure  African  descent;  his  ancestors  were  of  pure 
African  blood  and  were  brought  into  this  country  and  sold  as 

80 


SCOTT  v.  SANDFORD.  81 

negro  slaves."  To  this  Scott  demurred  and  the  demurrer  was 
sustained.  The  defendant  then  pleaded  in  bar  to  the  action  that 
the  plaintiff  was  his  negro  slave,  and  that  he  had  only  gently 
laid  hands  on  him  to  restrain  him,  as  he  had  a  right  to  do.  The 
judge  instructed  the  jury  that,  "upon  the  facts  in  this  case,  the 
law  is  with  the  defendant"  The  plaintiff  ezcepted  to  this  in- 
struction, and  upon  his  exceptions  the  case  was  taken  to  the 
United  States  Supreme  Court.] 

MB.  CHIEF  JUSTICE  TANEY  delivered  the  opinion  of  the  court.1 

There  are  two  leading  questions  presented  by  the  record : 

1.  Had  the  Circuit  Court  of  the  United  States  jurisdiction  to 
hear  and  determine  the  case  between  these  parties?    And 

2.  If  it  had  jurisdiction,  is  the  judgment  it  has  given  erro- 
neous or  not? 

The  plaintiff  in  error,  who  was  also  the  plaintiff  in  the  court 
below,  was,  with  his  wife  and  children,  held  as  slaves  by  the  de- 
fendant, in  the  State  of  Missouri ;  and  he  brought  this  action  in 
the  Circuit  Court  of  the  United  States  for  that  district,  to  assert 
the  title  of  himself  and  his  family  to  freedom. 

The  declaration  is  in  the  form  usually  adopted  in  that  State 
to  try  questions  of  this  description,  and  contains  the  averment 
necessary  to  give  the  court  jurisdiction ;  that  he  and  the  defend- 
ant are  citizens  of  different  States ;  that  is,  that  he  is  a  citizen  of 
Missouri,  and  the  defendant  a  citizen  of  New  York. 

The  defendant  pleaded  in  abatement  to  the  jurisdiction  of  the 
court,  that  the  plaintiff  was  not  a  citizen  of  the  State  of  Mis- 
souri, as  alleged  in  his  declaration,  being  a  negro  of  African  de- 
scent, whose  ancestors  were  of  pure  African  blood,  and  who  were 
brought  into  this  country  and  sold  as  slaves. 

To  this  plea  the  plaintiff  demurred,  and  the  defendant  joined 
in  demurrer.  The  court  overruled  the  plea,  and  gave  judgment 
that  the  defendant  should  answer  over.  And  he  thereupon  put 
in  sundry  pleas  in  bar,  upon  which  issues  were  joined;  and  at 

*  The  reporter  of  the  Court  ia  in  error  in  describing  Chief  Justice  Tanej  '• 
opinion  as  "  the  opinion  of  the  court ' '  Care  should  be  taken  to  distinguish 
the  opinion  of  the  court  from  the  judgment  of  the  court.  The  Supreme  Court 
consisted  of  nine  judges,  seven  of  whom  concurred  in  the  judgment  an- 
nounced by  the  Chief  Justice,  but  only  two  of  the  seven,  Justice  Wayne  and 
Justice  Daniel,  concurred  entirely  in  the  opinion  of  the  Chief  Justice.  All 
the  justices  of  the  majority  concurred  in  the  opinion  of  Justice  Nelson,  which 
was  originally  prepared  to  stand  as  the  opinion  of  the  court. 

B.C.L.— 4 


82  CASES  ON  CONSTITUTIONAL  LAW. 

the  trial  the  verdict  and  judgment  were  in  his  favor.    Where- 
upon the  plaintiff  brought  this  writ  of  error. 

Before  we  speak  of  the  pleas  in  bar,  it  will  be  proper  to  dis- 
pose of  the  questions  which  have  arisen  on  the  plea  in  abatement. 

That  plea  denies  the  right  of  the  plaintiff  to  sue  in  a  court  of 
the  United  States,  for  the  reasons  therein  stated.  .  .  .  It  is 
suggested,  however,  that  this  plea  is  not  before  us.  .  .  .  We 
think  they  [the  plea  and  the  judgment  of  the  court  upon  it] 
are  before  us  ...  and  it  becomes,  therefore,  our  duty  to 
decide  whether  the  facts  stated  in  the  plea  are  or  are  not  suffi- 
cient to  show  that  the  plaintiff  is  not  entitled  to  sue  as  a  citizen 
in  a  court  of  the  United  States.  .  .  . 

The  question  is  simply  this :  Can  a  negro,  whose  ancestors  were 
imported  into  this  country,  and  sold  as  slaves,  become  a  member 
of  the  political  community  formed  and  brought  into  existence  by 
the  Constitution  of  the  United  States,  and  as  such  become  entitled 
to  all  the  rights,  privileges  and  immunities,  guarantied  by  that 
instrument  to  the  citizen  ?  One  of  which  rights  is  the  privilege  of 
suing  in  a  court  of  the  United  States  in  the  cases  specified  in  the 
Constitution.  .  .  .  And  this  being  the  only  matter  in  dis- 
pute on  the  pleadings,  this  court  must  be  understood  as  speak- 
ing in  this  opinion  of  that  class  only,  that  is,  of  those  persons 
who  are  the  descendants  of  Africans  who  were  imported  into 
this  country  and  sold  as  slaves.  .  .  . 

The  words  ''people  of  the  United  States"  and  "citizens"  are 
synonymous  terms,  and  mean  the  same  thing.  They  both  de- 
scribe the  political  body  who,  according  to  our  republican  insti- 
tutions, form  the  sovereignty,  and  who  hold  the  power  and  con- 
duct the  Government  through  their  representatives.  They  are 
what  we  familiarly  call  the  "sovereign  people,"  and  every  citi- 
zen is  one  of  this  people,  and  a  constituent  member  of  this  sov- 
ereignty. The  question  before  us  is,  whether  the  class  of  per- 
sons described  in  the  plea  of  abatement  compose  a  portion  of  this 
people,  and  are  constituent  members  of  this  sovereignty?  We 
think  they  are  not,  and  that  they  are  not  included,  and  were  not 
intended  to  be  included,  under  the  word  "citizens"  in  the  Con- 
stitution, and  can  therefore  claim  none  of  the  rights  and  privi- 
leges which  that  instrument  provides  for  and  secures  to  citizens 
of  the  United  States.  On  the  contrary  they  were  at  that  time 
considered  as  a  subordinate  and  inferior  class  of  beings,  who 
had  been  subjugated  by  the  dominant  race,  and  whether  eman- 
cipated or  not,  yet  remained  subject  to  their  authority,  and  had 


SCOTT  v.  SAXDFORD.  83 

no  rights  or  privileges  but  such  as  those  who  held  the  power  and 
tin-  Government  might  choose  to  grant  them.     .     .     . 

In  discussing  this  question,  we  must  not  confound  the  rights 
of  citizenship  which  a  State  may  confer  within  its  own  limits, 
and  the  rights  of  citizenship  as  a  member  of  the  Union.  It  does 
not  by  any  means  follow,  because  he  has  all  the  rights  and  privi- 
leges of  a  citizen  of  a  State,  that  he  must  be  a  citizen  of  the 
Tinted  States.  He  may  have  all  the  rights  and  privileges  of  the 
citizen  of  a  State,  and  yet  not  be  entitled  to  the  rights  and  privi- 
'  leges  of  a  citizen  in  any  other  State.  For,  previous  to  the.  adop- 
tion of  the  Constitution  of  the  United  States,  every  State  had  the 
undoubted  right  to  confer  on  whomsoever  it  pleased  the  charac- 
ter of  citizen,  and  to  endow  him  with  all  his  rights.  But  this 
character  of  course  was  confined  to  the  boundaries  of  the  State, 
and  gave  him  no  rights  or  privileges  in  other  States  beyond 
those  secured  to  him  by  the  laws  of  nations  and  the  comity  of 
States.  Nor  have  the  several  States  surrendered  the  power  of 
conferring  these  rights  and  privileges  by  adopting  the  Consti- 
tution of  the  United  States.  Each  State  may  still  confer  them 
upon  an  alien,  or  any  one  it  thinks  proper,  or  upon  any  class 
or  description  of  persons;  yet  he  would  not  be  a  citizen  in  the 
sense  in  which  that  word  is  used  in  the  Constitution  of  the  United 
States,  nor  entitled  to  sue  as  such  in  one  of  its  courts,  nor  to  the 
privileges  and  immunities  of  a  citizen  in  the  other  States.  The 
rights  which  he  would  acquire  would  be  restricted  to  the  State 
which  gave  them.  The  Constitution  has  conferred  on  Congress 
the  right  to  establish  an  uniform  rule  of  naturalization,  and  this 
right  is  evidently  exclusive,  and  has  always  been  held  by  this 
court  to  be  so.  Consequently,  no  State,  since  the  adoption  of  the 
Constitution,  can,  by  naturalizing  an  alien,  invest  him  with  the 
rights  and  privileges  secured  to  a  citizen  of  a  State  under  the 
Federal  Government,  although,  so  far  as  the  State  alone  was 
rned,  he  would  undoubtedly  be  entitled  to  the  rights  of  a 
n,  and  clothed  with  all  the  rights  and  immunities  which 
the  Constitution  and  laws  of  the  State  attached  to  that  character. 
It  is  very  clear,  therefore,  that  no  State  can,  by  any  act  or 
Uw  of  its  own,  passed  since  the  adoption  of  the  Constitution,  in- 
troduce a  new  member  into  tho  political  community  created  by 
1  Oust  it  ut  ion  of  the  United  States.  It  cannot  make  him  a 
member  of  this  community  by  making  him  a  member  of  its  own. 
And  for  the  same  reason  it  cannot  introduce  any  person,  or  •  In- 
scription of  persons,  who  are  not  intended  to  be  embraced  in  this 


84  CASES  ON  CONSTITUTIONAL  LAW. 

new  political  family,  which  the  Constitution  brought  into  exist- 
ence, but  were  intended  to  be  excluded  from  it. 

The  question  then  arises,  whether  the  provisions  of  the  Con- 
stitution, in  relation  to  the  personal  rights  and  privileges  to 
which  the  citizen  of  a  State  should  be  entitled,  embraced  the 
negro  African  race,  at  that  time  in  this  country,  or  who  might 
afterward  be  imported,  who  had  then  or  should  afterwards  be 
made  free  in  any  State ;  and  to  put  it  in  the  power  of  a  single 
State  to  make  him  a  citizen  of  the  United  States,  and  endow 
him  with  the  full  rights  of  citizenship  in  every  other  State  with- 
out their  consent?  Does  the  Constitution  of  the  United  States 
act  upon  him  whenever  he  shall  be  made  free  under  the  laws  of 
a  State,  and  raised  there  to  the  rank  of  a  citizen,  and  immedi- 
ately clothe  him  with  all  the  privileges  of  a  citizen  in  every 
other  State,  and  in  its  own  courts? 

The  court  think  the  affirmative  of  these  propositions  cannot 
be  maintained.  And  if  it  cannot,  the  plaintiff  in  error  could  not 
be  a  citizen  of  the  State  of  Missouri,  within  the  meaning  of  the 
Constitution  of  the  United  States,  and,  consequently,  was  not 
entitled  to  sue  in  its  courts. 

It  is  true,  every  person,  and  every  class  and  description  of  per- 
sons, who  were  at  the  time  of  the  adoption  of  the  Constitution 
recognized  as  citizens  in  the  several  States,  became  also  citizens 
of  this  new  political  body;  but  none  other;  it  was  formed  by 
them,  and  for  them  and  their  posterity,  but  for  no  one  else.  And 
the  personal  rights  and  privileges  guarantied  to  citizens  of  this 
new  sovereignty  were  intended  to  embrace  those  only  who  were 
then  members  of  the  several  State  communities,  or  who  should 
afterwards,  by  birthright  or  otherwise,  become  members,  accord- 
ing to  the  provisions  of  the  Constitution  and  the  principles  on 
which  it  was  founded.  It  was  the  union  of  those  who  were  at 
that  time  members  of  distinct  and  separate  political  communi- 
ties into  one  political  family,  whose  power,  for  certain  specified 
purposes,  was  to  extend  over  the  whole  territory  of  the  United 
States.  And  it  gave  to  each  citizen  rights  and  privileges  outside 
of  his  State  which  he  did  not  before  possess,  and  placed  him  in 
every  other  State  upon  a  perfect  equality  with  its  own  citizens 
as  to  rights  of  person  and  rights  of  property ;  it  made  him  a  citi- 
zen of  the  United  States. 

It  becomes  necessary,  therefore,  to  determine  who  were  citizens 
of  the  several  States  when  the  Constitution  was  adopted.  And  in 
order  to  do  this,  we  must  recur  to  the  Governments  and  institu- 
tions of  the  thirteen  colonies,  when  they  separated  from  Great 


SCOTT  v.  SANDFORD.  85 

Britain  and  formed  new  sovereignties,  and  took  their  places  in 
the  family  of  independent  nations.  We  must  inquire  who,  at 
that  time,  were  recognized  as  the  people  or  citizens  of  a  State, 
whose  rights  and  liberties  had  been  outraged  by  the  English 
Government ;  and  who  declared  their  independence,  and  assumed 
the  powers  of  Government  to  defend  their  rights  by  force  of 
arms. 

In  the  opinion  of  the  court,  the  legislation  and  histories  of  the 
tiim  s,  and  the  language  used  in  the  Declaration  of  Independence, 
show,  that  neither  the  class  of  persons  who  had  been  imported 
as  slaves,  nor  their  descendants,  whether  they  had  become  free 
or  not,  were  then  acknowledged  as  a  part  of  the  people,  nor 
intended  to  be  included  in  the  general  words  used  in  that  mem- 
orable instrument.  .  .  . 

They  had  for  more  than  a  century  before  been  regarded  as 
beings  of  an  inferior  order,  and  altogether  unfit  to  associate  with 
the  white  race,  either  in  social  or  political  relations;  and  so  far 
inferior,  that  they  had  no  rights  which  the  white  man  was  bound 
to  respect ;  and  that  the  negro  might  justly  and  lawfully  be  re- 
duced to  slavery  for  his  benefit.1  ... 

The  legislation  of  the  different  colonies  furnishes  positive  and 
indisputable  proof  of  this  fact.  .  .  .  The  language  of  the 
Declaration  of  Independence  is  equally  conclusive.  .  .  .  This 
state  of  public  opinion  had  undergone  no  change  when  the  Con- 
stitution was  adopted,  as  is  equally  evident  from  its  provisions 

i  These  statements  of  the  Chief  Justice  as  to  the  legal  status  of  free 
negroes  in  the  several  States  at  the  time  of  the  adoption  of  the  Constitution 
were  not  well  founded,  as  was  pointed  out  by  Mr.  Justice  Curtis  in  his  dis- 
senting opinion.  In  New  Hampshire,  Massachusetts,  New  York,  New  Jersey, 
and  even  in  the  slave-holding  State  of  North  Carolina,  all  free  native-born 
inhabitants,  even  though  descended  from  slaves,  were  not  only  citizens  but 
also  voters.  In  State  v.  Manuel  (1838),  4  Devereaux  and  Battle,  20,  25,  the 
me  Court  of  North  Carolina  said,  "  It  is  a  matter  of  universal  notoriety 
that  ....  free  persons,  without  regard  to  color  claimed  and  exercised 
the  franchise,  until  it  was  taken  from  free  men  of  color  a  few  years  since 
[1835]  by  our  amended  Constitution."  This  change  of  attitude  toward  free 
negroes  was  not  confined  to  North  Carolina,  and  by  the  time  the  Dred 
ease  was  decided  they  were  quite  generally  disfranchised,  and  in  many  States, 
especially  those  in  which  slavery  existed,  they  were  not  recognized  as  citizens. 
This  whole  subject  has  been  well  treated  by  Gordon  E.  Sherman  in  < '  Eman- 
cipation and  Citizenship,"  in  the  Yale  Law  Journal,  XV,  263.  See  also 
Report  <m  Citicenthip  in  the  United  State*,  House  Document,  No.  326,  59th 
Congress,  2nd  Session,  and  the  learned  Opinion  of  the  Justices  (1857),  44 
Maine,  507,  given  in  answer  to  an  inquiry  from  the  legislature  as  to  whether 
free  colored  persons  of  African  descent  were  authorized  to  vote  under  the 
constitution  of  Maine. 


86  CASES  ON  CONSTITUTIONAL  LAW. 

and  language.  .  .  .  But  there  are  two  clauses  in  the  Consti- 
tution which  point  directly  and  specifically  to  the  negro  race  as 
a  separate  class  of  persons,  and  show  clearly  that  they  were  not 
regarded  as  a  portion  of  the  people  or  citizens  of  the  Govern- 
ment then  formed.  v 

One  of  these  clauses  reserves  to  each  of  the  thirteen  States 
the  right  to  import  slaves  until  the  year  1808,  if  it  thinks  proper. 
.  .  .  And  by  the  other  provision  the  States  pledge  themselves 
to  each  other  to  maintain  the  right  of  property  of  the  master, 
by  delivering  up  to  him  any  slave  who  may  have  escaped  from  his 
service,  and  be  found  within  their  respective  territories.  .  .  . 

The  legislation  of  the  States  therefore  shows,  in  a  manner 
not  to  be  mistaken,  the  inferior  and  subject  condition  of  that 
race  at  the  time  the  Constitution  was  adopted,  and  long  after- 
wards, throughout  the  thirteen  States  by  which  that  instrument 
was  framed ;  and  it  is  hardly  consistent  with  the  respect  due  to 
these  States,  to  suppose  that  they  regarded  at  that  time,  as  fel- 
low-citizens and  members  of  the  sovereignty,  a  class  of  beings 
whom  they  had  thus  stigmatized ;  whom,  as  we  are  bound,  out  of 
respect  to  the  State  sovereignties,  to  assume  they  had  deemed  it 
just  and  necessary  thus  to  stigmatize,  and  upon  whom  they  had 
impressed  such  deep  and  enduring  marks  of  inferiority  and 
degradation;  or,  that  when  they  met  in  convention  to  form  the 
Constitution,  they  looked  upon  them  as  a  portion  of  their  con- 
stituents, or  designed  to  include  them  in  the  provisions  so  care- 
fully inserted  for  the  security  and  protection  of  the  liberties 
and  rights  of  their  citizens.  It  cannot  be  supposed  that  they 
intended  to  secure  to  them  rights,  and  privileges,  and  rank,  in 
the  new  political  body  throughout  the  Union,  which  every  one 
of  them  denied  within  the  limits  of  its  own  dominion.  More 
especially,  it  cannot  be  believed  that  the  large  slave-holding 
States  regarded  them  as  included  in  the  word  citizens,  or  would 
have  consented  to  a  Constitution  which  might  compel  them  to 
receive  them  in  that  character  from  another  State.  For  if  they 
were  so  received,  and  entitled  to  the  privileges  and  immunities 
of  citizens,  it  would  exempt  them  from  the  operation  of  the  spe- 
cial laws  and  from  the  police  regulations  which  they  considered 
to  be  necessary  for  their  own  safety.  It  would  give  to  persons 
of  the  negro  race,  who  were  recognized  as  citizens  in  any  one 
State  of  the  Union,  the  right  to  enter  every  other  State  when- 
ever they  pleased,  singly  or  in  companies,  without  pass  or  pass- 
port, and  without  obstruction,  to  sojourn  there  as  long  as  they 
pleased,  to  go  where  they  pleased  at  every  hour  of  the  day  or 


SCOTT  v.  SANDFORD.  87 

night  without  molestation,  unless  they  committed  some  violation 
of  law  for  which  a  white  man  would  be  punished ;  and  it  would 
give  them  the  full  liberty  of  speech  in  public  and  in  private 
upon  all  subjects  upon  which  its  own  citizens  might  speak;  to 
hold  public  meetings  upon  political  affairs,  and  to  keep  and 
carry  arms  wherever  they  went.  And  all  this  would  be  done 
in  the  face  of  the  subject  race  of  the  same  color,  both  free  and 
slaves,  and  inevitably  producing  discontent  and  insubordination 
among  them,  and  endangering  the  peace  and  safety  of  the 
State.  .  .  . 

To  all  this  mass  of  proof  we  have  still  to  add,  that  Congress 
has  repeatedly  legislated  upon  the  same  construction  of  the  Con- 
stitution that  we  have  given.  .  .  . 

The  conduct  of  the  Executive  Department  of  the  Government 
has  been  in  perfect  harmony  upon  this  subject  with  this  course 
of  legislation.  The  question  was  brought  officially  before  the 
late  William  Wirt,  when  he  was  the  Attorney  General  of  the 
United  States,  in  1821,  and  he  decided  that  the  words  "citizens 
of  the  United  States"  were  used  in  the  acts  of  Congress  in  the 
same  sense  as  in  the  Constitution ;  and  that  free  persons  of  color 
were  not  citizens,  within  the  meaning  of  the  Constitution  and 
laws;  and  this  opinion  has  been  confirmed  by  that  of  the  late 
Attorney  General,  Caleb  Gushing,  in  a  recent  case,  and  acted 
upon  by  the  Secretary  of  State,  who  refused  to  grant  passports 
to  them  as  "citizens  of  the  United  States." 

But  it  is  said  that  a  person  may  be  a  citizen,  and  entitled  to 
that  character,  although  he  does  not  possess  all  the  rights  which 
may  belong  to  other  citizens;  as,  for  example,  the  right  to  vote, 
or  to  hold  particular  offices ;  and  that  yet,  when  he  goes  into  an- 
other State,  he  is  entitled  to  be  recognized  there  as  a  citizen, 
although  the  State  may  measure  his  rights  by  the  rights  which 
it  allows  to  persons  of  a  like  character  or  class  resident  in  the 
State,  and  refuse  to  him  the  full  rights  of  citizenship. 

This  argument  overlooks  the  language  of  the  provision  in  the 
Constitution  of  which  we  are  speaking. 

Undoubtedly,  a  person  may  be  a  citizen,  that  is,  a  member  of 
the  community  who  form  the  sovereignty,  although  he  exercises 
no  share  of  the  political  power,  and  is  incapacitated  from  hold- 
ing particular  offices.  Women  and  minors,  who  form  a  part  of 
the  political  family,  cannot  vote;  and  when  a  property  quali- 
fication is  required  to  vote  or  hold  a  particular  office,  those  who 
have  not  the  necessary  qualification  cannot  vote  or  hold  office, 
yet  they  are  citizens. 


88  CASES  ON  CONSTITUTIONAL  LAW. 

So,  too,  a  person  may  be  entitled  to  vote  by  the  law  of  the 
State,  who  is  not  a  citizen  even  of  the  State  itself.  And  in  some 
of  the  States  of  the  Union  foreigners  not  naturalized  are  allowed 
to  vote.  And  the  State  may  give  the  right  to  free  negroes  and 
mulattoes,  but  that  does  not  make  them  citizens  of  the  State, 
and  still  less  of  the  United  States.  And  the  provision  in  the  Con- 
stitution giving  privileges  and  immunities  in  other  States,  does 
not  apply  to  them. 

Neither  does  it  apply  to  a  person  who,  being  the  citizen  of  a 
State,  migrates  to  another  State.  For  then  he  becomes  subject 
to  the  laws  of  the  State  in  which  he  lives,  and  he  is  no  longer 
a  citizen  of  the  State  from  whicbTne  removed.  .  .  . 

But  so  far  as  mere  rights  of  persons  are  concerned,  the  pro- 
vision in  question  is  confined  to  citizens  of  a  State  who  are  tem- 
porarily in  another  State  without  taking  up  their  residence  there. 
It  gives  them  no  political  rights  in  the  State  as  to  voting  or  hold- 
ing office,  or  in  any  other  respect.  For  a  citizen  of  one  State 
has  no  right  to  participate  in  the  government  of  another.  But 
if  he  ranks  as  a  citizen  in  the  State  to  which  he  belongs,  within 
the  meaning  of  the  Constitution  of  the  United  States,  then,  when- 
ever he  goes  into  another  State,  the  Constitution  clothes  him,  as 
to  the  rights  of  person,  with  all  the  privileges  and  immunities 
which  belong  to  citizens  of  the  State.  And  if  persons  of  the  Afri- 
can race  are  citizens  of  a  State,  and  of  the  United  States,  they 
would  be  entitled  to  all  of  these  privileges  and  immunities  in 
every  State,  and  the  State  could  not  restrict  them;  for  they 
would  hold  these  privileges  and  immunities  under  the  para- 
mount authority  of  the  Federal  Government,  and  its  courts  would 
be  bound  to  maintain  and  enforce  them,  the  Constitution  and 
laws  of  the  State  to  the  contrary  notwithstanding.  And  if  the 
States  could  limit  or  restrict  them,  or  place  the  party  in  an 
inferior  grade,  this  clause  of  the  Constitution  would  be  unmean- 
ing, and  could  have  no  operation;  and  would  give  no  rights  to 
the  citizen  when  in  another  State.  He  would  have  none  but 
what  the  State  itself  chose  to  allow  him.  This  is  evidently  not 
the  construction  or  meaning  of  the  clause  in  question.  It  guar- 
anties rights  to  the  citizen,  and  the  State  cannot  withhold  them. 
And  these  rights  are  of  a  character  and  would  lead  to  conse- 
quences which  make  it  absolutely  certain  that  the  African  race 
were  not  included  under  the  name  of  citizens  of  a  State,  and 
were  not  in  the  contemplation  of  the  framers  of  the  Constitution 
when  these  privileges  and  immunities  were  provided  for  the  pro- 
tection of  the  citizens  in  other  States. 


SCOTT  v.  SANDFORD.  89 

What  the  construction  [of  the  Constitution]  was  at  that  time 
[when  it  was  framed],  we  think  can  hardly  admit  of  doubt  We 
have  the  language  of  the  Declaration  of  Independence  and  of  the 
Articles  of  Confederation,  in  addition  to  the  plain  words  of  the 
Constitution  itself ;  we  have  the  legislation  of  the  different  States, 
before,  about  the  time,  and  since,  the  Constitution  was  adopted ; 
we  have  the  legislation  of  Congress,  from  the  time  of  its  adop- 
tion to  a  recent  period ;  and  we  have  the  constant  and  uniform 
action  of  the  Executive  Department,  all  concurring  together, 
and  leading  to  the  same  result.  And  if  anything  in  relation  to 
the  construction  of  the  Constitution  can  be  regarded  as  settled, 
it  is  that  which  we  now  give  to  the  word  "citizen"  and  the 
word  "people." 

And  upon  a  full  and  careful  consideration  of  the  subject,  the 
court  is  of  opinion,  that,  upon  the  facts  stated  in  the  plea  in 
abatement,  Dred  Scott  was  not  a  citizen  of  Missouri  within  the 
meaning  of  the  Constitution  of  the  United  States,  and  not  en- 
titled as  such  to  sue  in  its  courts;  and,  consequently,  that  the 
Circuit  Court  had  no  jurisdiction  of  the  case,  and  that  the  judg- 
ment on  the  plea  in  abatement  is  erroneous.  .  .  .  [Here  fol- 
lows a  discussion  of  the  judicial  authority  of  the  court  to  exam- 
ine any  question  in  the  case  other  than  that  of  the  jurisdiction 
of  the  Circuit  Court.  The  court  determines  that  it  has  the 
requisite  authority.] 

We  proceed,  therefore,  to  inquire  whether  the  facts  relied  on 
by  the  plaintiff  entitled  him  to  his  freedom.  .  .  . 

In  considering  this  part  of  the  controversy,  two  questions  arise : 
1.  Was  he,  together  with  his  family,  free  in  Missouri  by  reason  of 
the  stay  in  the  territory  of  the  United  States  hereinbefore  men- 
tioned? And  2.  If  they  were  not,  is  Scott  himself  free  by  rea- 
son of  his  removal  to  Rock  Island,  in  the  State  of  Illinois,  as 
stated  in  the  above  admissions? 

We  proceed  to  examine  the  first  question. 

The  act  of  Congress,  upon  which  the  plaintiff  relies,  declares 
that  slavery  and  involuntary  servitude,  except  as  a  punishment 
for  crime,  shall  be  forever  prohibited  in  all  that  part  of  the  ter- 
ritory ceded  by  France,  under  the  name  of  Louisiana,  which  lies 
north  of  thirty-six  degrees  thirty  minutes  north  latitude,  and  not 
included  within  the  limits  of  Missouri.  And  the  difficulty  which 
meets  us  at  the  threshold  of  this  part  of  the  inquiry  is,  whether 
Congress  was  authorized  to  pass  this  law,  under  any  of  the  pow- 
ers granted  to  it  by  the  Constitution ;  for  if  the  authority  is  not 
given  by  that  instrument,  it  is  the  duty  of  this  court  to  declare 


90  CASES  ON  CONSTITUTIONAL  LAW. 

it  void  and  inoperative,  and  incapable  of  conferring  freedom 
upon  any  one  who  is  held  as  a  slave  under  the  laws  of  any  one 
of  the  States. 

The  counsel  for  the  plaintiff  has  laid  much  stress  upon  that 
article  in  the  Constitution  which  confers  on  Congress  the  power 
' '  to  dispose  of  and  make  all  needful  rules  and  regulations  respect- 
ing the  territory  or  other  property  belonging  to  the  United 
States ; ' '  but,  in  the  judgment  of  the  court,  that  provision  has  no 
bearing  on  the  present  controversy,  and  the  power  there  given, 
whatever  it  may  be,  is  confined,  and  was  intended  to  be  confined, 
to  the  territory  which  at  that  time  belonged  to,  or  was  claimed  by, 
the  United  States,  and  was  within  their  boundaries  as  settled  by 
the  treaty  with  Great  Britain,  and  can  have  no  influence  upon  a 
territory  afterwards  acquired  from  a  foreign  Government.  It 
was  a  special  provision  for  a  known  and  particular  territory,  and 
to  meet  a  present  emergency,  and  nothing  more.  .  .  . 

At  the  time  when  the  Territory  in  question  was  obtained  by 
cession  from  France,  it  contained  no  population  fit  to  be  asso- 
ciated together  and  admitted  as  a  State;  and  it  therefore  was 
absolutely  necessary  to  hold  possession  of  it,  as  a  Territory  be- 
longing to  the  United  States,  until  it  was  settled  and  inhabited  by 
a  civilized  community  capable  of  self-government,  and  in  a  con- 
dition to  be  admitted  on  equal  terms  with  the  other  States  as  a 
member  of  the  Union.  But,  as  we  have  before  said,  it  was  acquired 
by  the  General  Government,  as  the  representative  and  trustee  of 
the  people  of  the  United  States,  and  it  must  therefore  be  held  in 
that  character  for  their  common  and  equal  benefit ;  for  it  was  the 
people  of  the  several  States,  acting  through  their  agent  and  repre- 
sentative, the  Federal  Government,  who  in  fact  acquired  the  Ter- 
ritory in  question,  and  the  Government  holds  it  for  their  common 
use  until  it  shall  be  associated  with  the  other  States  as  a  member 
of  the  Union. 

But  until  that  time  arrives,  it  is  undoubtedly  necessary  that 
some  Government  should  be  established,  in  order  to  organize 
society,  and  to  protect  the  inhabitants  in  their  persons  and  prop- 
erty; and  as  the  people  of  the  United  States  could  act  in  this 
matter  only  through  the  Government  which  represented  them, 
and  through  which  they  spoke  and  acted  when  the  Territory  was 
obtained,  it  was  not  only  within  the  scope  of  its  powers,  but  it 
was  its  duty  to  pass  such  laws  and  establish  such  a  Government 
as  would  enable  those  by  whose  authority  they  acted  to  reap  the 
advantages  anticipated  from  its  acquisition,  and  to  gather  there 
a  population  which  would  enable  it  to  assume  the  position  to 


SCOTT  v.  SANDFORD.  91 

which  it  was  destined  among  the  States  of  the  Union.  .  .  . 
But  the  power  of  Congress  over  the  person  or  property  of  a  citi- 
zen can  never  be  a  mere  discretionary  power  under  our  Constitu- 
tion and  form  of  Government.  The  powers  of  the  Government 
and  the  rights  and  privileges  of  the  citizen  are  regulated  and 
plainly  defined  by  the  Constitution  itself.  .  .  .  Thus  the 
rights  of  property  are  united  with  the  rights  of  person,  and 
placed  on  the  same  ground  by  the  fifth  amendment  to  the  Con- 
stitution, which  provides  that  no  person  shall  be  deprived  of  life, 
liberty,  and  property,  without  due  process  of  law.  And  an  act 
of  Congress  which  deprives  a  citizen  of  the  United  States  of  his 
liberty  or  property,  merely  because  he  came  himself  or  brought 
his  property  into  a  particular  Territory  of  the  United  States,  and 
who  had  committed  no  offense  against  the  laws,  could  hardly  be 
dignified  with  the  name  of  due  process  of  law.  .  .  . 

It  seems,  however,  to  be  supposed,  that  there  is  a  difference 
between  property  in  a  slave  and  other  property,  and  that  differ- 
ent rules  may  be  applied  to  it  in  expounding  the  Constitution  of 
the  United  States.  And  the  laws  and  usages  of  nations,  and  the 
writings  of  eminent  jurists  upon  the  relation  of  master  and  slave 
and  their  mutual  rights  and  duties,  and  the  powers  which  Gov- 
ernments may  exercise  over  it,  have  been  dwelt  upon  in  the  argu- 
ment. 

But  in  considering  the  question  before  us,  it  must  be  borne  in 
mind  that  there  is  no  law  of  nations  standing  between  the  people 
of  the  United  States  and  their  Government,  and  interfering  with 
their  relation  to  each  other.  The  powers  of  the  Government,  and 
the  rights  of  the  citizen  under  it,  are  positive  and  practical  regu- 
lations plainly  written  down.  The  people  of  the  United  States 
have  delegated  to  it  certain  enumerated  powers,  and  forbidden  it 
to  exercise  others.  It  has  no  power  over  the  person  or  property 
of  a  citizen  but  what  the  citizens  of  the  United  States  have 
granted.  And  no  laws  or  usages  of  other  nations,  or  reasoning 
of  statesmen  or  jurists  upon  the  relations  of  master  and  slave,  can 
enlarge  the  powers  of  the  Government,  or  take  from  the  citizens 
the  rights  they  have  reserved.  And  if  the  Constitution  recognizes 
the  right  of  property  of  the  master  in  a  slave,  and  makes  no  dis- 
tinction between  that  description  of  property  and  other  property 
owned  by  a  citizen,  no  tribunal,  acting  under  the  authority  of  the 
United  States,  whether  it  be  legislative,  executive,  or  judicial, 
has  a  right  to  draw  such  a  distinction,  or  deny  to  it  the  benefit 
of  the  provisions  and  guarantees  which  have  been  provided  for 


92  CASES  ON  CONSTITUTIONAL  LAW. 

the  protection  of  private  property  against  the  encroachments  of 
the  Government. 

Now,  as  we  have  already  said  in  an  earlier  part  of  this  opinion, 
upon  a  different  point,  the  right  of  property  in  a  slave  is  dis- 
tinctly and  expressly  affirmed  in  the  Constitution.  The  right  to 
traffic  in  it,  like  an  ordinary  article  of  merchandise  and  property, 
was  guaranteed  to  the  citizens  of  the  United  States,  in  every  State 
that  might  desire  it,  for  twenty  years.  And  the  Government  in 
express  terms  is  pledged  to  protect  it  in  all  future  time,  if  the 
slave  escapes  from  his  owner.  This  is  done  in  plain  words — too 
plain  to  be  misunderstood.  And  no  word  can  be  found  in  the 
Constitution  which  gives  Congress  a  greater  power  over  slave 
property,  or  which  entitles  property  of  that  kind  to  less  protec- 
tion than  property  of  any  other  description.  The  only  power 
conferred  is  the  power  coupled  with  the  duty  of  guarding  and 
protecting  the  owner  in  his  rights. 

Upon  these  considerations,  it  is  the  opinion  of  the  court  that 
the  act  of  Congress  which  prohibited  a  citizen  from  holding  or 
owning  property  of  this  kind  in  the  territory  of  the  United  States 
north  of  the  line  therein  mentioned,  is  not  warranted  by  the  Con- 
stitution, and  is  therefore  void ;  and  that  neither  Dred  Scott  him- 
self, nor  any  of  his  family,  were  made  free  by  being  carried  into 
this  territory ;  even  if  they  had  been  carried  there  by  the  owner, 
with  the  intention  of  becoming  a  permanent  resident.  .  .  . 

But  there  is  another  point  in  the  case  which  depends  upon 
State  power  and  State  law.  And  it  is  contended,  on  the  part  of 
the  plaintiff,  that  he  is  made  free  by  being  taken  to  Rock  Island, 
in  the  State  of  Illinois,  independently  of  his  residence  in  the  ter- 
ritory of  the  United  States;  and  being  so  made  free,  he  was  not 
again  reduced  to  a  state  of  slavery  by  being  brought  back  to 
Missouri. 

Our  notice  of  this  part  of  the  case  will  be  very  brief ;  for  the 
principle  on  which  it  depends  was  decided  in  this  court,  upon 
much  consideration,  in  the  case  of  Strader  et  al.  v.  Graham,  re- 
ported in  10th  Howard,  82.  In  that  case,  the  slaves  had  been 
taken  from  Kentucky  to  Ohio, -with  the  consent  of  the  owner, 
and  afterwards  brought  back  to  Kentucky.  And  this  court  held 
that  their  status  or  condition,  as  free  or  slave,  depended  upon  the 
laws  of  Kentucky,  when  they  were  brought  back  into  that  State, 
and  not  of  Ohio ;  and  that  this  court  had  no  jurisdiction  to  revise 
the  judgment  of  a  State  court  upon  its  own  laws.  .  .  . 

So  in  this  case.  As  Scott  was  a  slave  when  taken  into  the  State 
of  Illinois  by  his  owner,  and  was  there  held  as  such,  and  brought 


SCOTT  v.  SANDFORD.  93 

back  in  that  character,  his  status,  as  free  or  slave,  depended  on 
the  laws  of  Missouri,  and  not  of  Illinois. 

It  has,  however,  been  urged  in  the  argument,  that  by  the  laws 
of  Missouri  he  was  free  on  his  return,  and  that  this  case,  there- 
fore, cannot  be  governed  by  the  case  of  Strader  et  al.  v.  Graham, 
where  it  appeared,  by  the  laws  of  Kentucky,  that  the  plaintiffs 
continued  to  be  slaves  on  their  return  from  Ohio.  But  whatever 
doubts  or  opinions  may,  at  one  time,  have  been  entertained  upon 
this  subject,  we  are  satisfied,  upon  a  careful  examination  of  all 
the  cases  decided  in  the  State  courts  of  Missouri  referred  to, 
that  it  is  now  firmly  settled  by  the  decisions  of  the  highest  court 
in  the  State,  that  Scott  and  his  family  upon  their  return  were  not 
free,  but  were,  by  the  laws  of  Missouri,  the  property  of  the  de- 
fendant ;  and  that  the  Circuit  Court  of  the  United  States  had  no 
jurisdiction,  when,  by  the  laws  of  the  State,  the  plaintiff  was  a 
slave,  and  not  a  citizen.  .  .  . 

Upon  the  whole,  therefore,  it  is  the  judgment  of  this  court,  that 
it  appears  by  the  record  before  us,  that  the  plaintiff  in  error  is 
not  a  citizen  of  Missouri,  in  the  sense  in  which  that  word  is  used 
in  the  Constitution;  and  that  the  Circuit  Court  of  the  United 
States,  for  that  reason,  had  no  jurisdiction  in  the  case,  and  could 
give  no  judgment  in  it.  Its  judgment  for  the  defendant  must, 
consequently,  be  reversed,  and  a  mandate  issued,  directing  the 
suit  to  be  dismissed  for  want  of  jurisdiction.  .  .  . 

MB.   JUSTICE  MCLEAN  and   MB.  JUSTICE  CUBTIS  dissented. 


NOTE. — The  court  which  heard  the  Dred  Scott  case  consisted  of  nine 
judges,  all  of  whom  delivered  opinions,  some  of  which  were  so  discursive  as 
to  make  it  difficult  to  connect  them  with  the  questions  which  the  court  was 
asked  to  decide.  Of  the  seven  judges  .who  concurred  in  the  judgment  an- 
nounced by  the  Chief  Justice,  only  three — Taney,  Wayne,  and  Daniel, — held 
that  the  plea  in  abatement  was  open  and  hence  that  the  question  of  the  status 
of  free  negroes  was  before  the  court.  Justice  Catron  held  that  the  plea  was 
not  open.  Justice  Grier  evaded  the  question,  and  Justices  Nelson  and  Camp- 
bell based  their  opinions  on  grounds  which  made  it  unnecessary  to  pass  upon 
the  question.  Of  the  two  dissenting  justices,  Justice  Curtis  held  that  the 
plea  was  before  the  court  and  Justice  McLean  held  that  it  was  not.  Six 
judges — Taney,  Wayne,  Daniel,  Grier,  Campbell  and  Catron— held  that  the 
Missouri  Compromise  was  unconstitutional. 

The  historic  importance  of  the  Dred  Scott  case  lies  in  the  dicta  in  the 
opinion  of  the  Chief  Justice  rather  than  in  the  decision  of  the  court  that  it 
had  no  jurisdiction.  Its  immediate  effect  on  public  sentiment  was  largely 
due  to  a  feeling  that  the  court's  action  waa  partisan.  It  is  now  known  that 
this  feeling  waa  well-founded.  The  case  was  twice  argued.  At  the  first 
hearing  it  appeared  that  the  court  would  not  consider  the  question  of  the 


94  CASES  ON  CONSTITUTIONAL  LAW. 

constitutionality  of  the  Missouri  Compromise,  and  the  opinion  of  Justice 
Nelson  was  then  prepared  to  stand  as  the  opinion  of  the  court.  Curtis,  Life 
of  Benjamin  Bobbins  Curtis,  I,  80.  But  after  the  second  argument  the  pro- 
slavery  judges  determined  to  effect-  if  possible  a  permanent  settlement  of  the 
status  of  slavery  in  the  United  States.  The  motive  is  clearly  set  forth  by 
Justice  Wayne  who  said  in  his  opinion,  "The  case  involves  private  rights 
of  value,  and  constitutional  principles  of  the  highest  importance,  about 
which  there  had  become  such  a  difference  of  opinion,  that  the  peace  and 
harmony  of  the  country  required  the  settlement  of  them  by  judicial  deci- 
sion." 19  Howard,  454-5.  The  efforts  of  Wayne  and  Catron,  the  two 
judges  who  were  most  active  in  the  attainment  of  this  result,  to  win  over 
some  of  their  colleagues  may  be  traced  in  The  WorTcs  of  James  Buchanan 
(Moore,  Ed.),  X,  106  seq.  For  this  reference  I  am  indebted  to  Prof.  E.  S. 
Corwin  's  paper  on  The  Dred  Scott  Decision.  Contrary  to  the  usual  practice, 
the  court  or  some  members  of  it  allowed  its  decision  to  become  known  in 
favored  quarters  before  it  was  announced.  The  general  scope  of  it  was 
known  to  Alexander  H.  Stephens  as  early  as  January,  1857.  Ehodes,  History 
of  the  United  States,  II,  253.  And  Buchanan  referred  to  the  approaching  de- 
cision in  his  inaugural  in  which  he  besought  acquiescence  in  it,  "whatever 
it  might  be."  The  decision  was  announced  two  days  later  and  it  has  been 
charged  that  it  was  purposely  held  up  in  order  that  Buchanan  might  in  a 
measure  prepare  public  opinion  for  it.  Although  the  charge  has  been  several 
times  brought  against  the  Supreme  Court  that  certain  of  its  decisions  were 
due  to  partisan  considerations,  this  is  the  only  authenticated  instance  of  it. 
The  decision  of  the  Supreme  Court  of  Missouri  in  Scott's  first  case  is  re- 
ported in  15  Mo.  682.  George  Ticknor  Curtis'  argument  for  Scott  before 
the  Federal  Supreme  Court  is  given  in  his  Constitutional  History  of  the 
United  States,  II,  499.  For  further  accounts  of  the  case  and  its  conse- 
quences, see  Nicolay  and  Hay,  Life  of  Lincoln,  II,  ch.  4;  Ehodes,  History  of 
the  United  States,  II,  251 ;  Hurd,  The  Law  of  Freedom  and  Bondage  in  the 
United  States,  I,  527;  Benton,  Examination  of  the  Dred  Scott  Decision,  and 
a  learned  note  by  the  editor  in  Thayer,  Cases  on  Constitutional  Law,  I,  493. 


UNITED  STATES  v.  WONG  KIM  ARK. 

SUPREME  COURT  OF  THE  UNITED  STATES.    1898. 
169  U.  S.  649;  42  Lawyers'  Ed.  890. 

Appeal  from  the  District  Court  of  the  United  States  for  the 
Northern  District  of  California. 

MR.  JUSTICE  GRAY  .  .  .  delivered  the  opinion  of  the  court.  .  .  . 

The  question  presented  by  the  record  is  whether  a  child  born 
in  the  United  States,  of  parents  of  Chinese  descent,  who,  at  the 
time  of  his  birth,  are  subjects  of  the  Emperor  of  China,  but  have 
a  permanent  domicile  and  residence  in  the  United  States,  and  are 
there  carrying  on  business,  and  are  not  employed  in  any  diplo- 
matic or  official  capacity  under  the  Emperor  of  China,  becomes 


UNITED  STATES  v.  WONG  KIM  ARK.  95 

at  the  time  of  his  birth  a  citizen  of  the  United  States,  by  virtue 
of  the  first  clause  of  the  Fourteenth  Amendment  of  the  Constitu- 
tion, "All  persons  born  or  naturalized  in  the  United  States,  and 
subject  to  the  jurisdiction  thereof,  are  citizens  of  the  United 
States  and  of  the  State  wherein  they  reside." 

I.  In  construing  any  act  of  legislation,  whether  a  statute  en- 
acted by  the  legislature,  or  a  constitution  established  by  the 
people  as  the  supreme  law  of  the  land,  regard  is  to  be  had  not 
only  to  all  parts  of  the  act  itself,  and  of  any  former  act  of  the 
same  law-making  power,  of  which  the  act  in  question  is  an  amend- 
ment ;  but  also  to  the  condition,  and  to  the  history,  of  the  law  as 
previously  existing,  and  in  the  light  of  which  the  new  act  must 
be  read  and  interpreted. 

The  Constitution  of  the  United  States,  as  originally  adopted, 
uses  the  words  " citizen  of  the  United  States,"  and  "natural-born 
citizen  of  the  United  States."  .  .  . 

The  Constitution  nowhere  defines  the  meaning  of  these  words, 
either  by  way  of  inclusion  or  of  exclusion,  except  in  so  far  as  this 
is  done  by  the  affirmative  declaration  that  "all  persons  born  or 
naturalized  in  the  United  States,  and  subject  to  the  jurisdiction 
thereof,  are  citizens  of  the  United  States."  In  this,  as  in  other 
respects,  it  must  be  interpreted  in  the  light  of  the  common  law, 
the  principles  and  history  of  which  were  familiarly  known  to  the 
f ramers  of  the  Constitution.  Minor  v.  Happersett,  21  Wall.  162 ; 
Ex  parte  Wilson,  114  U.  S.  417,  422;  Boyd  v.  United  States,  116 
U.  S.  616,  624,  625;  Smith  v.  Alabama,  124  U.  S.  465.  The 
language  of  the  Constitution,  as  has  been  well  said,  could  not  be 
understood  without  reference  to  the  common  law.  I  Kent  Com. 
336 ;  Bradley,  J.,  in  Moore  v.  United  States,  91  U.  S.  270,  274. 

II.  The  fundamental  principle  of  the  common  law  with  regard 
to  English  nationality  was  birth  within  the  allegiance,  also  called 
' '  ligealty, "  "  obedience, "  "  faith  "  or  "  power, ' '  of  the  King.  The 
principle  embraced  all  persons  born  within  the  King's  allegiance 
and  subject  to  his  protection.     Such  allegiance  and  protection 
were  mutual — as  expressed  in  the  maxim,  protectio  trahit  sub- 
jectionem,  et  subjectio  protectionom — and  were  not  restricted  to 
natural-born  subjects  and  naturalized  subjects,  or  to  those  who 
had  taken  an  oath  of  allegiance ;  but  were  predicable  of  aliens  in 
amity  so  long  as  they  were  within  the  kingdom.    Children,  born 
in  England,  of  such  aliens,  were  therefore  natural-born  MI!  . 
But  the  children,  born  within  the  realm,  of  foreign  ambassadors, 
or  the  children  of  alien  enemies,  born  during  and  within  their 


96  CASES  ON  CONSTITUTIONAL  LAW. 

hostile  occupation  of  part  of  the  King's  domains,  were  not  natu- 
ral-born subjects,  because  not  born  within  the  allegiance,  the 
obedience,  or  the  power,  or,  as  would  be  said  at  this  day,  within 
the  jurisdiction  of  the  King.  .  .  . 

It  thus  clearly  appears  that  by  the  law  of  England  for  the  last 
three  centuries,  beginning  before  the  settlement  of  this  country, 
and  continuing  to  the  present  day,  aliens,  while  residing  in  the 
dominions  possessed  by  the  Crown  of  England,  were  within  the 
allegiance,  the  obedience,  the  faith  or  loyalty,  the  protection,  the 
power,  the  jurisdiction  of  the  English  Sovereign;  and  therefore 
every  child  born  in  England  of  alien  parents  was  a  natural-born 
subject,  unless  the  child  of  an  ambassador  or  other  diplomatic 
agent  of  a  foreign  State,  or  of  an  alien  enemy  in  hostile  occupa- 
tion of  the  place  where  the  child  was  born. 

III.  The  same  rule  was  in  force  in  all  the  English  Colonies 
upon  this  continent  down  to  the  time  of  the  Declaration  of  Inde- 
pendence, and  in  the  United  States  afterwards,  and  continued  to 
prevail  under  the  Constitution  as  originally  established.     .     .     . 

IV.  It  was  contended  by  one  of  the  learned  counsel  for  the 
United  States  that  the  rule  of  the  Roman  law,  by  which  the  citi- 
zenship of  the  child  followed  that  of  the  parent,  was  the  true  rule 
of  international  law  as  now  recognized  in  most  civilized  countries, 
and  had  superseded  the  rule  of  the  common  law,  depending  on 
birth  within  the  realm,  originally  founded  on  feudal  considera- 
tions.    .    .     .     [The  court  here  examines  the  laws  of  the  various 
European  countries  as  to  citizenship  and  finds  that  they  greatly 
differed.] 

There  is,  therefore,  little  ground  for  the  theory,  that  at  the 
time  of  the  adoption  of  the  Fourteenth  Amendment  of  the  Consti- 
tution of  the  United  States,  there  was  any  settled  or  definite  rule 
of  international  law,  generally  recognized  by  civilized  nations, 
inconsistent  with  the  ancient  rule  of  citizenship  by  birth  within 
the  dominion. 

Nor  can  it  be  doubted  that  it  is  the  inherent  right  of  every 
independent  nation  to  determine  for  itself,  and  according  to  its 
own  constitution  and  laws,  what  classes  of  persons  shall  be  en- 
titled to  its  citizenship.  .  .  . 

Passing  by  questions  once  earnestly  controverted,  but  finally 
put  at  rest  by  the  Fourteenth  Amendment  of  the  Constitution,  it 
is  beyond  doubt  that,  before  the  enactment  of  the  Civil  Rights  Act 
of  1866  or  the  adoption  of  the  Constitutional  Amendment,  all 
white  persons,  at  least,  born  within  the  sovereignty  of  the  United 


UNITED  STATES  v.  WONG  KIM  ARK.  97 

States,  whether  children  of  citizens  or  of  foreigners,  excepting 
only  children  of  ambassadors  or  public  ministers  of  a  foreign 
government,  were  native-born  citizens  of  the  United  State*. 

V.  In  the  forefront,  both  of  the  Fourteenth  Amendment  of  the 
Constitution,  and  of  the  Civil  Rights  Act  of  1866,  the  fundamen- 
tal principle  of  citizenship  by  birth  within  the  dominion  was  re- 
affirmed in  the  most  explicit  and  comprehensive  terms.  .  .  . 

The  first  section  of  the  Fourteenth  Amendment  of  the  Consti- 
tution begins  with  the  words,  ' '  All  persons  born  or  naturalized  in 
the  United  States,  and  subject  to  the  jurisdiction  thereof,  are  citi- 
zens of  the  United  States  and  of  the  State  wherein  they  reside." 
As  appears  from  the  face  of  the  amendment,  as  well  as  from  the 
history  of  the  times,  this  was  not  intended  to  impose  any  new 
restrictions  upon  citizenship,  or  to  prevent  any  persons  from  be- 
coming citizens  by  the  fact  of  birth  within  the  United  States,  who 
would  thereby  have  become  citizens  according  to  the  law  existing 
before  its  adoption.  It  is  declaratory  in  form,  and  enabling  and 
extending  in  effect.  Its  main  purpose  doubtless  was,  as  has  been 
often  recognized  by  this  court,  to  establish  the  citizenship  of  free 
negroes  which  had  been  denied  in  the  opinion  delivered  by  Chief 
Justice  Taney  in  Dred  Scott  v.  Sandford  (1857),  19  How.  393; 
and  to  put  it  beyond  doubt  that  all  blacks,  as  well  as  whites,  born 
or  naturalized  within  the  jurisdiction  of  the  United  States,  are 
citizens  of  the  United  States.  The  Slaughterhouse  Cases  (1873), 
16  Wall.  36,  73;  Strauder  v.  West  Virginia  (1879),  100  U.  S. 
303,  306;  Ex  parte  Virginia  (1879),  100  U.  S.  339,  345;  Neal  v. 
Delaware  (1880),  103  U.  S.  370,  386;  Elk  v.  Wilkins  (1884),  112 
U.  S.  94,  101.  But  the  opening  words,  "All  persons  born,"  are 
general,  not  to  say  universal,  restricted  only  by  place  and  juris- 
diction, and  not  by  color  or  race — as  was  clearly  recognized  in  all 
the  opinions  delivered  in  the  Slaughter-House  Cases.  .  .  . 

The  real  object  of  the  Fourteenth  Amendment  of  the  Constitu- 
tion, in  qualifying  the  words,  "All  persons  born  in  the  United 
States,"  by  the  addition,  "and  subject  to  the  jurisdiction  there- 
of," would  appear  to  have  been  to  exclude,  by  the  fewest  and 
fitt.-st  words  (besides  children  of  members  of  the  Indian  tribes, 
standing  in  a  peculiar  relation  to  the  National  Government,  un- 
known to  the  common  law),  the  two  classes  of  cases— children 
born  of  alien  enemies  in  hostile  occupation,  and  children  of 
diplomatic  representatives  of  a  foreign  state — both  of  which,  as 
has  already  been  shown,  by  the  law  of  England,  and  by  our  own 
law,  from  the  time  of  the  first  settlement  of  tlu«  English  colonies 
in  America,  had  been  recognized  exceptions  to  the  fundamental 

x.  c.  L.-T 


98  CASES  ON  CONSTITUTIONAL  LAW. 

rule  of  citizenship  by  birth  within  the  country.  Calvin's  Case, 
7  Kep.  1,  18& ;  Cockburn  on  Nationality,  7 ;  Dicey,  Conflict  of 
Laws,  177;  Inglis  v.  Sailors'  Snug  Harbor,  3  Pet.  99,  155;  2 
Kent  Com.  39,  42  .  .  . 

From  the  first  organization  of  the  National  Government  under 
the  Constitution,  the  naturalization  acts  of  the  United  States  in 
providing  for  the  admission  of  aliens  to  citizenship  by  judicial 
proceedings,  uniformly  required  every  applicant  to  have  resided 
for  a  certain  time  "within  the  limits  and  under  the  jurisdiction 
of  the  United  States ; ' '  and  thus  applied  the  words  ' '  under  the 
jurisdiction  of  the  United  States"  to  aliens  residing  here  before 
they  had  taken  an  oath  to  support  the  Constitution  of  the  United 
States,  or  had  renounced  allegiance  to  a  foreign  government. 
Acts  of  March  26,  1790,  c.  3 ;  January  29,  1795,  c.  20,  §  1 ;  June 
18, 1798,  c.  54,  §§  1,  6;  1  Stat.  103,  414,  566,  568;  April  14,  1802, 
c.  28,  §  1 ;  2  Stat.  153 ;  March  22,  1816,  c.  32,  §  1 ;  3  Stat,  258 ; 
May  24,  1828,  c.  116,  §  2 ;  4  Stat.  310 ;  Rev.  Stat.  §  2165.  And, 
from  1795,  the  provisions  of  those  acts,  which  granted  citizenship 
to  foreign-born  children  of  American  parents,  described  such  chil- 
dren as  "born  out  of  the  jurisdiction  and  limits  of  the  United 
States."  Acts  of  January  29,  1795,  c.  20,  §  3 ;  1  Stat.  415 ;  April 
14, 1802,  c.  28,  §  4 ;  2  Stat.  155 ;  February  10, 1855,  c.  71 ;  10  Stat. 
604;  Rev.  Stat.  §§  1993,  2172.  Thus  Congress,  when  dealing  with 
the  question  of  citizenship  in  that  aspect,  treated  aliens  residing 
in  this  country  as  ' '  under  the  jurisdiction  of  the  United  States, ' ' 
and  American  parents  residing  abroad  as  ' '  out  of  the  jurisdiction 
of  the  United  States." 

The  words  "in  the  United  States,  and  subject  to  the  jurisdic- 
tion thereof, ' '  in  the  first  sentence  of  the  Fourteenth  Amendment 
of  the  Constitution,  must  be  presumed  to  have  been  understood 
and  intended  by  the  Congress  which  proposed  the  Amendment, 
and  by  the  legislatures  which  adopted  it,  in  the  same  sense  in 
which  the  like  words  had  been  used  by  Chief  Justice  Marshall  in 
the  well  known  case  of  The  Exchange ;  and  as  the  equivalent  of 
the  words  "within  the  limits  and  under  the  jurisdiction  of  the 
United  States, ' '  and  the  converse  of  the  words, ' '  out  of  the  limits 
and  jurisdiction  of  the  United  States, ' '  as  habitually  used  in  the 
naturalization  acts.  This  presumption  is  confirmed  by  the  use 
of  the  word  "jurisdiction"  in  the  last  clause  of  the  same  section 
of  the  Fourteenth  Amendment,  which  forbids  any  State  to  ' '  deny 
to  any  person  within  its  jurisdiction  the  equal  protection  of  the 
laws."  It  is  impossible  to  construe  the  words  "subject  to  the 
jurisdiction  thereof,"  in  the  opening  sentence,  as  less  comprehen- 


UNITED  STATES  v.  WONG  KIM  ARK.  99 

sive  ilian  the  words  "within  its  jurisdiction,"  in  the  concluding 
sentence  of  the  same  section ;  or  to  hold  that  persons  ' '  within  the 
jurisdiction"  of  one  of  the  States  of  the  Union  are  not  "subject 
to  the  jurisdiction  of  the  United  States." 

These  considerations  confirm  the  view,  already  expressed  in 
this  opinion,  that  the  opening  sentence  of  the  Fourteenth  Amend- 
ment is  throughout  affirmative  and  declaratory,  intended  to  allay 
doubts  and  to  settle  controversies  which  had  arisen,  and  not  to 
impose  any  new  restrictions  upon  citizenship.  .  .  . 

This  sentence  of  the  Fourteenth  Amendment  is  declaratory  of 
existing  rights,  and  affirmative  of  existing  law,  as  to  each  of  the 
qualifications  therein  expressed — "born  in  the  United  States," 
"naturalized  in  the  United  States,"  and  "subject  to  the  juris- 
diction thereof" — in  short,  as  to  everything  relating  to  the  acqui- 
sition of  citizenship  by  facts  occurring  within  the  limits  of  the 
United  States.  But  it  has  not  touched  the  acquisition  of  citizen- 
ship by  being  born  abroad  of  American  parents;  and  has  left 
that  subject  to  be  regulated,  as  it  had  always  been,  by  Congress, 
in  the  exercise  of  the  power  conferred  by  the  Constitution  to 
establish  an  uniform  rule  of  naturalization. 

The  effect  of  the  enactments  conferring  citizenship  on  foreign- 
born  children  of  American  parents  has  been  defined,  and  the 
fundamental  rule  of  citizenship  by  birth  within  the  dominion  of 
the  United  States,  notwithstanding  alienage  of  parents,  has  been 
affirmed,  in  well  considered  opinions  of  the  executive  depart- 
ments of  the  Government,  since  the  adoption  of  the  Fourteenth 
Amendment  of  the  Constitution.  .  .  . 

These  opinions  go  to  show  that,  since  the  adoption  of  the  Four- 
teenth Amendment,  the  executive  branch  of  the  Government,  the 
one  charged  with  the  duty  of  protecting  American  citizens  abroad 
against  unjust  treatment  by  other  nations,  has  taken  the  same 
view  of  the  act  of  Congress  of  1855,  declaring  children  born 
abroad  of  American  citizens  to  be  themselves  citizens,  which,  ss 
mentioned  in  a  former  part  of  this  opinion,  the  British  Foreign 
Office  has  taken  of  similar  acts  of  Parliament — holding  that  such 
statutes  cannot,  consistently  with  our  own  established  rule  of 
citi/cnship  by  birth  in  this  country,  operate  extra-territorially 
so  far  as  to  relieve  any  person  born  and  residing  in  a  foreign 
country,  and  subject  to  its  government,  from  his  allegiance  to 
that  country.  .  .  . 

The  foregoing  considerations  and  authorities  irresistibly  lead 
as  to  these  conclusions:  the  Fourteenth  Amendment  affirms  the 
ancient  and  fundamental  rule  of  citizenship  by  birth  within  the 


100  CASES  ON  CONSTITUTIONAL  LAW. 

territory,  in  the  allegiance  and  under  the  protection  of  the  coun- 
try, including  all  children  here  born  of  resident  aliens,  with  the 
exceptions  or  qualifications  (as  old  as  the  rule  itself)  of  children 
of  foreign  sovereigns  or  their  ministers,  or  born  on  foreign  public 
ships,  or  of  enemies  within  and  during  hostile  occupation  of  part 
of  our  territory,  and  with  the  single  additional  exception  of  chil- 
dren of  members  of  the  Indian  tribes  owing  direct  allegiance  to 
their  several  tribes.  The  Amendment,  in  clear  words  and  in  man- 
ifest intent,  includes  the  children  born,  within  the  territory  of  the 
United  States,  of  all  other  persons,  of  whatever  race  or  color, 
domiciled  within  the  United  States.  Every  citizen  or  subject  of 
another  country,  while  domiciled  here,  is  within  the  allegiance 
and  protection,  and  consequently  subject  to  the  jurisdiction  of  the 
United  States.  His  allegiance  to  the  United  States  is  direct  and 
immediate,  and,  although  but  local  and  temporary,  continuing 
only  so  long  as  he  remains  within  our  territory,  is  yet,  in  the 
words  of  Lord  Coke,  in  Calvin's  Case,  7  Rep.  6a,  "strong  enough 
to  make  a  natural  subject,  for  if  he  hath  issue  here,  that  issue  is 
a  natural-born  subject;"  and  his  child,  as  said  by  Mr.  Binney  in 
his  essay  before  quoted,  "if  born  in  the  country,  is  as  much  a 
citizen  as  the  natural-born  child  of  a  citizen,  and  by  operation 
of  the  same  principle."  It  can  hardly  be  denied  that  an  alien  is 
completely  subject  to  the  political  jurisdiction  of  the  country  in 
which  he  resides — seeing  that,  as  said  by  Mr.  "Webster,  when 
Secretary  of  State,  in  his  Report  to  the  President  on  Thrasher's 
Case  in  1851,  and  since  repeated  by  this  court,  "independently 
of  a  residence  with  intention  to  continue  such  residence;  inde- 
pendently of  any  domiciliation ;  independently  of  the  taking  of 
any  oath  of  allegiance  or  of  renouncing  any  former  allegiance, 
it  is  well  known  that,  by  the  public  law,  an  alien,  or  a  stranger 
born,  for  so  long  a  time  as  he  continues  within  the  dominions 
of  a  foreign  government,  owes  obedience  to  the  laws  of  that  gov- 
ernment, and  may  be  punished  for  treason,  or  other  crimes,  as  a 
native-born  subject  might  be,  unless  his  case  is  varied  by  some 
treaty  stipulations."  Ex.  Doc.  H.  R.  No.  10,  1st  sess.  32d  Con- 
gress, p.  4;  6  Webster's  Works,  526;  United  States  v.  Carlisle,  16 
Wall.  147,  155;  Calvin's  Case,  7  Rep.  6a;  Ellesmere  on  Postnati, 
63 ;  1  Hale  P.  C.  62 ;  4  Bl.  Com.  74,  92. 

To  hold  that  the  Fourteenth  Amendment  of  the  Constitution 
excludes  from  citizenship  the  children,  born  in  the  United  States, 
of  citizens  or  subjects  of  other  countries,  would  be  to  deny  citizen- 
ship to  thousands  of  persons  of  English,  Scotch,  Irish,  German  or 


UNITED  STATES  v.  \\o.\t;  KIM  ARK.  101 

other  European  parentage,  who  have  always  been  considered  and 
treated  as  citizens  of  the  United  States. 

VI.  Whatever  considerations,  in  the  absence  of  a  controlling 
provision  of  the  Constitution,  might  influence  the  legislative  or 
the  executive  branch  of  the  Government  to  decline  to  admit  per- 
sons of  the  Chinese  race  to  the  status  of  citizens  of  the  United 
States,  there  are  none  that  can  restrain  or  permit  the  judiciary  to 
refuse  to  give  full  effect  to  the  peremptory  and  explicit  language 
of  the  Fourteenth  Amendment,  which  declares  and  ordains  that 
4 '  All  persons  born  or  naturalized  in  the  United  States,  and  sub- 
ject to  the  jurisdiction  thereof,  are  citizens  of  the  United  States." 

Chinese  persons,  born  out  of  the  United  States,  remaining  sub- 
jects of  the  Emperor  of  China,  and  not  having  become  citizens  of 
the  United  States,  are  entitled  to  the  protection  of  and  owe  alle- 
giance to  the  United  States,  so  long  as  they  are  permitted  by 
the  United  States  to  reside  here;  and  are  "subject  to  the  juris- 
diction thereof, ' '  in  the  same  sense  as  all  other  aliens  residing  in 
the  United  States.  Tick  Wo  v.  Hopkins  (1886),  118  U.  S.  356; 
Law  Ow  Bew  v.  United  States  (1892),  144  U.  S.  47,  61,  62; 
Fong  Yue  Ting  v.  United  States  (1893),  149  U.  S.  698,  7iM; 
Lem  Moon  Sing  v.  United  States  (1895),  158  U.  S.  538,  547; 
Wong  Wing  v.  United  States  (1896),  163  U.S.  228,  238.  .  .  . 

The  Fourteenth  Amendment  of  the  Constitution,  in  the  declara- 
tion that  "all  persons  born  or  naturalized  in  the  United  States, 
and  subject  to  the  jurisdiction  thereof,  are  citizens  of  the  United 
States  and  of  the  States  wherein  they  reside,*'  contemplates  two 
sources  of  citizenship,  and  two  only:  birth  and  naturalization. 
Citizenship  by  naturalization  can  only  be  acquired  by  naturaliza- 
tion under  the  authority  and  in  the  forms  of  law.  But  citizenship 
by  birth  is  established  by  the  mere  fact  of  birth  under  the  circum- 
stances defined  in  the  Constitution.  Every  person  born  in  the 
United  States,  and  subject  to  the  jurisdiction  thereof,  becomes  at 
once  a  citizen  of  the  United  States,  and  needs  no  naturalization. 
A  person  born  out  of  the  jurisdiction  of  the  United  States  can 
only  become  a  citizen  by  being  naturalized,  either  by  treaty,  as  in 
the  case  of  the  annexation  of  foreign  territory,  or  by  authority  of 
Congress,  exercised  either  by  declaring  certain  classes  of  persona 
to  be  citizens,  as  in  the  enactments  conferring  citizenship  upon 
foreign-born  children  of  citizens,  or  by  enabling  foreigners  indi- 
vidually to  become  citizens  by  proceedings  in  the  judicial  tribu- 
nals, as  in  the  ordinary  provisions  of  the  naturalization  acts. 

The  power  of  naturalization,  vested  in  Congress  by  the  Consti- 
tution, is  a  power  to  confer  citizenship,  not  a  power  to  take  it 


102  CASES  ON  CONSTITUTIONAL  LAW. 

away.  "A  naturalized  citizen,"  said  Chief  Justice  Marshall, 
"becomes  a  member  of  the  society,  possessing  all  the  rights  of  a 
native  citizen,  and  standing,  in  the  view  of  the  Constitution,  on 
the  footing  of  a  native.  The  Constitution  does  not  authorize  Con- 
gress to  enlarge  or  abridge  those  rights.  The  simple  power  of 
the  National  Legislature  is  to  prescribe  a  uniform  rule  of  natur- 
alization, and  the  exercise  of  this  power  exhausts  it,  so  far  as 
respects  the  individual.  The  Constitution  then  takes  him  up,  and, 
among  other  rights,  extends  to  him  the  capacity  of  suing  in  the 
courts  of  the  United  States,  precisely  under  the  same  circum- 
stances under  which  a  native  might  sue."  Osborn  v.  United 
States  Bank,  9  Wheat.  738,  827.  Congress  having  no  power  to 
abridge  the  rights  conferred  by  the  Constitution  upon  those  who 
have  become  naturalized  citizens  by  virtue  of  acts  of  Congress, 
a  fortiori  no  act  or  omission  of  Congress,  as  to  providing  for  the 
naturalization  of  parents  or  children  of  a  particular  race,  can 
affect  citizenship  acquired  as  a  birth-right,  by  virtue  of  the  Con- 
stitution itself,  without  any  aid  of  legislation.  The  Fourteenth 
Amendment,  while  it  leaves  the  power  where  it  was  before,  in  Con- 
gress, to  regulate  naturalization,  has  conferred  no  authority  upon 
Congress  to  restrict  the  effect  of  birth,  declared  by  the  Constitu- 
tion to  constitute  a  sufficient  and  complete  right  to  citizenship. 

No  one  doubts  that  the  Amendment,  as  soon  as  it  was  promul- 
gated, applied  to  persons  of  African  descent  born  in  the  United 
States,  wherever  the  birthplace  of  their  parents  might  have  been ; 
and  yet,  for  two  years  afterwards,  there  was  no  statute  author- 
izing persons  of  that  race  to  be  naturalized.  If  the  omission  or 
the  refusal  of  Congress  to  permit  certain  classes  of  persons  to  be 
made  citizens  by  naturalization  could  be  allowed  the  effect  of  cor- 
respondingly restricting  the  classes  of  persons  who  should  be- 
come citizens  by  birth,  it  would  be  in  the  power  of  Congress,  at 
any  time,  by  striking  negroes  out  of  the  naturalization  laws,  and 
limiting  those  laws,  as  they  were  formerly  limited,  to  white  per- 
sons, to  defeat  the  main  purpose  of  the  Constitutional  Amend- 
ment. 

The  fact,  therefore,  that  acts  of  Congress  or  treaties  have  not 
permitted  Chinese  persons  born  out  of  this  country  to  become 
citizens  by  naturalization,  cannot  exclude  Chinese  persons  born 
in  this  country  from  the  operation  of  the  broad  and  clear  words 
of  the  Constitution,  "All  persons  born  in  the  United  States,  and 
subject  to  the  jurisdiction  thereof,  are  citizens  of  the  United 
States."  .  .  . 

The  evident  intention,  and  the  necessary  effect,  of  the  submis- 


UNITED  STATES  v.  WONG  KIM  ARK.  103 

sion  of  this  case  to  the  decision  of  the  court  upon  the  facts  agreed 
by  the  parties,  were  to  present  for  examination  the  single  ques- 
tion, stated  at  the  beginning  of  this  opinion,  namely,  whether  a 
child  born  in  the  United  States,  of  parents  of  Chinese  descent, 
who,  at  the  time  of  his  birth,  are  subjects  of  the  Emperor  of 
China,  but  have  a  permanent  domicile  and  residence  in  the  United 
States,  and  are  there  carrying  on  business,  and  are  not  employed 
in  any  diplomatic  or  official  capacity  under  the  Emperor  of  China, 
becomes  at  the  time  of  his  birth  a  citizen  of  the  United  States. 
For  the  reasons  above  stated,  this  court  is  of  opinion  that  the 
question  must  be  answered  in  the  affirmative.  Order  affirmed. 

MB.  CHIEF  JUSTICE  FULLER,  with  whom  concurred  Ma.  JUS- 
TICE HARLAN,  dissenting.    .    .    . 

NOTE. — The  opinion  in  the  principal  case  is  a  masterly  exposition,  un- 
fortunately too  long  to  be  re-printed  in  full,  of  the  law  of  citizenship  in  the 
United  States,  England,  and  the  chief  countries  on  the  Continent  The  whole 
merits  careful  study.  The  question  of  citizenship  in  the  United  States  has 
been  made  ranch  more  complicated  than  in  most  countries  because  of  the 
presence  of  large  numbers  of  people  belonging  to  races  to  which  the  dom- 
inant race  was  unwilling  to  accord  the  status  of  citizen.  Antedating  the 
whites  themselves  were  the  native  Indians  who  have  always  occupied  an 
anomalous  position  in  American  law.  See  Cherokee  Nation  v.  Georgia 
(1831),  5  Peters,  1;  Worcester  v.  Georgia  (1832),  6  Peters,  515;  Elk  T. 
Wilkins  (1884),  112  U.  8.  94;  The  Cherokee  Trust  Funds  (1886),  117  U.  B. 
288;  United  States  v.  Kagama  (1886),  118  U.  8.  375;  Lone  Wolf  v.  Hitch- 
cock  (1903),  187  U.  8.  553;  United  States  T.  Sandoval  (1913),  231  U.  8.  28, 
and  a  learned  .paper  by  J.  B.  Thayer  on  ' '  A  People  without  Law, "  in  his 
Legal  Essays,  91.  The  introduction  of  African  slaves  and  the  gradual 
emancipation  of  members  of  that  race  created  another  difficult  situation 
which  is  elaborately  discussed  in  the  case  of  Dred  Scott  v.  Sand  ford  (1857), 
19  Howard,  393.  Slaves  of  course  were  never  recognized  as  citizens. 
Whether  freedmen  should  be  so  recognized  was  a  question  variously  answered 
in  the  different  States  until  settled  by  the  adoption  of  the  Fourteenth 
Amendment.  The  annexation  of  Porto  Rico  and  the  Philippines  has  brought 
under  the  jurisdiction  of  the  United  States  other  groups  of  people  who  owe 
allegiance  to  the  United  States  but  who  are  not  citizens  thereof.  Gonzales 
v.  Williams  (1904),  192  U.  8.  1.  It  is  now  becoming  common  to  apply  the 
term  "nationals"  to  all  persons  owing  allegiance  to  a  country  whether  or 
not  they  are  recognized  as  citizens  of  that  country. 

Citizenship  in  the  United  States  and  citizenship  in  a  State  are  distinct 
and  may  be  separately  acquired.  United  States  T.  Cruikshank  (1870),  92 
U.  8.  542.  A  resident  of  the  District  of  Colombia  may  be  a  citizen  of  the 
United  States,  but  is  not  a  citizen  of  any  State,  Hepburn  v.  Ellzey  (1804), 
2  Cranch.  445,  and  it  would  seem  that  one  might  be  a  citizen  of  a  State  with- 
out being  a  citizen  of  the  United  States.  Hammerstein  T.  Lyne  (1912),  200 
Fed.  165,  but  contra,  City  of  Minneapolis  v.  Reum  (1893),  56  Fed.  576.  A 
State  cannot  make  an  alien  a  citizen  of  the  United  States,  Lang  T.  Randall 


104  CASES  ON  CONSTITUTIONAL  LAW. 

(1876),  4  Dill.  425,  although  it  may  confer  upon  an  alien  all  the  privileges 
which  it  confers  upon  its  citizens.  In  the  Federal  laws  no  distinction  is 
made  between  native-born  and  naturalized  citizens  except  as  to  eligibility  to 
the  presidency  and  vice-presidency.  Osborn  v.  Bank  of  the  United  States 
(1824),  9  Wheaton,  738;  Boyd  v.  Thayer  (1892),  143  U.  S.  135;  Luria  v. 
United  States  (1913),  231  U.  S.  9. 

Naturalization  is  the  process  by  which  an  alien  is  converted  into  a  citizen. 
This  is  usually  accomplished  by  the  individual  alien's  conforming  to  the  re- 
quirements of  the  Federal  statute,  but  there  are  many  instances  of  collec- 
tive naturalization.  On  the  conclusion  of  the  treaty  of  peace  of  1783  all 
persons  then  adhering  to  the  United  States,  whether  born  in  the  country  or 
not,  were  absolved  of  their  allegiance  to  Great  Britain,  while  adherents  of 
Great  Britain  remained  British  subjects.  Mcllvaine  v.  Coxe's  Lessee 
(1808),  4  Cranch.  209;  Inglis  v.  Trustees  (1830),  3  Peters,  99;  Shanks  v. 
Dumont  (1830),  3  Peters,  242.  The  transfer  of  territory  from  one  country 
to  another  necessarily  involves  a  transfer  of  the  allegiance  of  its  inhabitants, 
but  the  latter  do  not  necessarily  become  citizens  of  their  new  country.  This 
is  exemplified  in  the  present  status  of  the  Porto  Eicans  and  Filipinos.  But 
all  the  citizens  of  the  ceded  territory  may  be  made  citizens  at  once,  as  was 
done  in  the  case  of  Texas.  Coutzen  v.  United  States  (1900),  179  U.  S.  191. 
The  admission  of  a  Territory  to  the  Union  may  also  operate  as  a  collective 
naturalization  of  its  inhabitants.  Boyd  v.  Thayer  (1892),  143  U.  S.  135. 
' '  All  persons  who  were  citizens  of  the  Republic  of  Hawaii  on  August  12, 
1898,"  the  day  of  the  formal  transfer  of  sovereignty  to  the  United  States, 
were  collectively  "declared  to  be  citizens  of  the  United  States  and  citizens 
of  the  Territory  of  Hawaii"  by  the  act  of  Congress  of  April  30,  1900. 
31  Stat.  at  Large,  141.  For  many  other  cases  arising  in  connection  with 
naturalization,  see  Moore,  Digest  of  International  Law,  III,  ch.  x,  a  learned 
note  in  Scott,  Cases  on  International  Law,  397,  and  A  Report  on  Citizenship 
of  the  United  States,  House  Doc.  326,  59th  Congress,  2d  Session. 


t 

SECTION  2.    PRIVILEGES  AND  IMMUNITIES  OF  CITIZENS 
OF  THE  UNITED  STATES. 

No  State  shall  make  or  enforce  any  law  which  shall  abridge  the 
privileges  or  immunities  of  citizens  of  the  United  States. 

Constitution  of  the  United  States,  Amendment  XIV,  §  1. 

The  right  of  citizens  of  the  United  States  to  vote  shall  not  be 
denied  or  abridged  by  the  United  States  or  by  any  State  on  account 
of  race,  color,  or  previous  condition  of  servitude. 

Constitution  of  the  United  States,  Amendment  XV. 

SLAUGHTER-HOUSE  CASES. 

SUPREME  COURT  OF  THE  UNITED  STATES.     1873. 
16  Wallace,  36;   21  Lawyers'  Ed.  394. 

Error  to  the  Supreme  Court  of  Louisiana. 

[The  legislature  of  Louisiana  enacted  a  law  whereby  it  created 
a    corporation,    The    Crescent    City    Live-Stock    Landing    and 


SLAUGHTER-HOUSE  CASES.  105 

Slaughter-IIousc  Company,  to  which  it  granted  a  monopoly  with- 
in the  City  of  New  Orleans  of  the  lauding  and  slaughtering  of 
animals  intended  for  food.  This  company  was  required  to  permit 
any  other  person  to  slaughter  animals  in  their  slaughter-houses 
and  a  maximum  charge  for  such  service  was  fixed.  The  butchers 
of  New  Orleans  contest  the  validity  of  the  act  on  the  ground 
that  it  is  contrary  to  the  Thirteenth  and  Fourteenth  Amendments 
of  the  Constitution.] 

MB.  JUSTICE  MILLER  .  .  .  delivered  the  opinion  of  the 
court.  .  .  . 

The  plaintiffs  in  error  accepting  this  issue,  allege  that  the 
statute  is  a  violation  of  the  Constitution  of  the  United  States  in 
these  several  particulars : 

That  it  creates  an  involuntary  servitude  forbidden  by  the  thir- 
teenth article  of  amendment; 

That  it  abridges  the  privileges  and  immunities  of  citizens  of 
the  United  States; 

That  it  denies  to  the  plaintiffs  the  equal  protection  of  the  laws ; 
and, 

That  it  deprives  them  of  their  property  without  due  process  of 
law;  contrary  to  the  provisions  of  the  first  section  of  the  four- 
teenth article  of  amendment. 

This  court  is  thus  called  upon  for  the  first  time  to  give  con- 
struction to  these  articles.  .  .  . 

The  first  section  of  the  fourteenth  article,  to  which  our  atten- 
tion is  more  specially  invited,  opens  with  a  definition  of  citizen- 
ship—not only  citizenship  of  the  United  States,  but  citizenship  of 
the  States.  No  such  definition  was  previously  found  in  the  Con- 
stitution, nor  had  any  attempt  been  made  to  define  it  by  act  of 
Congress.  It  had  been  the  occasion  of  much  discussion  in  the 
courts,  by  the  executive  departments,  and  in  the  public  journals. 
It  had  been  said  by  eminent  judges  that  no  man  was  a  citizen  of 
the  United  States  except  as  he  was  a  citizen  of  one  of  the  States 
composing  the  Union.  Those,  therefore,  who  had  been  born  and 
resided  always  in  the  District  of  Columbia  or  in  the  Territories, 
though  within  the  United  States,  were  not  citizens.  Whether  this 
proposition  was  sound  or  not  had  never  been  judicially  decided. 
But  it  had  been  held  by  this  court,  in  the  celebrated  Dred  Scott 
caser  only  a  few  years  before  the  outbreak  of  the  civil  war,  that 
a  man  of  African  descent,  whether  a  slave  or  not,  was  not  and 
could  not  be  a  citizen  of  a  State  or  of  the  United  States.  This 
decision,  while  it  met  the  condemnation  of  some  of  the  ablest 


106  CASES  ON  CONSTITUTIONAL  LAW. 

statesmen  and  constitutional  lawyers  of  the  country,  had  never 
been  overruled ;  and  if  it  was  to  be  accepted  as  a  constitutional 
limitation  of  the  right  of  citizenship,  then  all  the  negro  race  who 
had  recently  been  made  freemen,  were  still,  not  only  not  citizens, 
but  were  incapable  of  becoming  so  by  anything  short  of  an  amend- 
ment to  the  Constitution. 

To  remove  this  difficulty  primarily,  and  to  establish  a  clear  and 
comprehensive  definition  of  citizenship  which  should  declare  what 
should  constitute  citizenship  of  the  United  States,  and  also  citi- 
zenship of  a  State,  the  first  clause  of  the  first  section  was  framed. 

"All  persons  born  or  naturalized  in  the  United  States,  and 
subject  to  the  jurisdiction  thereof,  are  citizens  of  the  United 
States  and  of  the  State  wherein  they  reside. ' ' 

The  first  observation  we  have  to  make  on  this  clause  is,  that  it 
puts  at  rest  both  the  questions  which  we  stated  to  have  been  the 
subject  of  differences  of  opinion.  It  declares  that  persons  may  be 
citizens  of  the  United  States  without  regard  to  their  citizenship 
of  a  particular  State,  and  it  overturns  the  Dred  Scott  decision  by 
making  all  persons  born  within  the  United  States  and  subject  to 
its  jurisdiction  citizens  of  the  United  States.  That  its  main  pur- 
pose was  to  establish  the  citizenship  of  the  negro  can  admit  of  no 
doubt.  The  phrase,  "subject  to  its  jurisdiction"  was  intended  to 
exclude  from  its  operation  children  of  ministers,  consuls,  and 
citizens  or  subjects  of  foreign  states  born  within  the  United 
States.1 

The  next  observation  is  more  important  in  view  of  the  argu- 
ments of  counsel  in  the  present  case.  It  is,  that  the  distinction 
between  citizenship  of  the  United  States  and  citizenship  of  a 
State  is  clearly  recognized  and  established.  Not  only  may  a  man 
be  a  citizen  of  the  United  States  without  being  a  citizen  of  a 
State,  but  an  important  element  is  necessary  to  convert  the  for- 
mer into  the  latter.  He  must  reside  within  the  State  to  make 
him  a  citizen  of  it,  but  it  is  only  necessary  that  he  should  be  born 
or  naturalized  in  the  United  States  to  be  a  citizen  of  the  Union. 

It  is  quite  clear,  then,  that  there  is  a  citizenship  of  the  United 
States,  and  a  citizenship  of  a  State,  which  are  distinct  from  each 
other,  and  which  depend  upon  different  characteristics  or  circum- 
stances in  the  individual. 

We  think  this  distinction  and  its  explicit  recognition  in  this 
amendment  of  great  weight  in  this  argument,  because  the  next 

i  As  to  this  dictum,  compare  the  decision  in  United  States  v.  Wong  Kim 
Ark,  169  U.  S.  649. 


SLAUGHTER-HOUSE  CASES.  107 

paragraph  of  this  same  section,  which  is  the  one  mainly  relied  on 
by  the  plaintiffs  in  error,  speaks  only  of  privileges  and  immuni- 
ties of  citizens  of  the  United  States,  and  does  not  speak  of  those 
of  citizens  of  the  several  States.  The  argument,  however,  in  favor 
of  the  plaintiffs  rests  wholly  on  the  assumption  that  the  citizen- 
ship is  the  same,  and  the  privileges  and  immunities  guaranteed 
by  the  clause  are  the  same. 

The  language  is,  "No  State  shall  make  or  enforce  any  law 
which  shall  abridge  the  privileges  or  immunities  of  citizens  of 
the  United  States."  It  is  a  little  remarkable,  if  this  clause  was 
intended  as  a  protection  to  the  citizen  of  a  State  against  the 
legislative  power  of  his  own  State,  that  the  word  citizen  of  the 
State  should  be  left  out  when  it  is  so  carefully  used,  and  used  in 
contradistinction  to  citizens  of  the  United  States,  in  the  very 
sentence  which  precedes  it.  It  is  too  clear  for  argument  that  the 
change  in  phraseology  was  adopted  understandingly  and  with  a 
purpose. 

Of  the  privileges  and  immunities  of  the  citizen  of  the  United 
States,  and  of  the  privileges  and  immunities  of  the  citizen  of  the 
State,  and  what  they  respectively  are,  we  will  presently  consider ; 
but  we  wish  to  state  here  that  it  is  only  the  former  which  are 
placed  by  this  clause  under  the  protection  of  the  Federal  Consti- 
tution, and  that  the  latter,  whatever  they  may  be,  are  not  intend- 
ed to  have  any  additional  protection  by  this  paragraph  of  the 
amendment. 

If,  then,  there  is  a  difference  between  the  privileges  and  im- 
munities belonging  to  a  citizen  of  the  United  States  as  such,  and 
those  belonging  to  the  citizen  of  the  State  as  such,  the  latter  must 
rest  for  their  security  and  protection  where  they  have  heretofore 
rested;  for  they  are  not  embraced  by  this  paragraph  of  the 
amendment. 

The  first  occurrence  of  the  words  "privileges  and  immunities** 
in  our  constitutional  history,  is  to  be  found  in  the  fourth  of  the 
articles  of  the  old  Confederation. 

It  declares  "that  the  better  to  secure  and  perpetuate  mutual 
friendship  and  intercourse  among  the  people  of  the  different 
States  in  this  Union,  the  free  inhabitants  of  each  of  these  States, 
paupers,  vagabonds,  and  fugitives  from  justice  excepted,  shall  be 
entitled  to  all  the  privileges  and  immunities  of  free  citizens  in  the 
several  States;  and  the  people  of  each  State  shall  have  free 
ingress  and  regress  to  and  from  any  other  State,  and  shall  enjoy 
therein  all  the  privileges  of  trade  and  commerce,  subject  to  the 


108  CASES  ON  CONSTITUTIONAL  LAW. 

same  duties,  impositions,  and  restrictions  as  the  inhabitants  there- 
of respectively. ' ' 

In  the  Constitution  of  the  United  States,  which  superseded  the 
Articles  of  Confederation,  the  corresponding  provision  is  found  in 
section  two  of  the  fourth  article,  in  the  following  words :  ' '  The 
citizens  of  each  State  shall  be  entitled  to  all  the  privileges  and 
immunities  of  citizens  of  the  several  States. ' ' 

There  can  be  but  little  question  that  the  purpose  of  both  these 
provisions  is  the  same,  and  that  the  privileges  and  immunities 
intended  are  the  same  in  each.  In  the  article  of  the  Confederation 
we  have  some  of  these  specifically  mentioned,  and  enough  per- 
haps to  give  some  general  idea  of  the  class  of  civil  rights  meant 
by  the  phrase. 

Fortunately  we  are  not  without  judicial  construction  of  this 
clause  of  the  Constitution.  The  first  and  the  leading  case  on  the 
subject  is  that  of  Corfield  v.  Coryell,  decided  by  Mr.  Justice 
Washington  in  the  Circuit  Court  for  the  District  of  Pennsyl- 
vania in  1823,  4  Washington's  Circuit  Court,  371. 

"The  inquiry,"  he  says,  "is,  what  are  the  privileges  and  im- 
munities of  citizens  of  the  several  States  ?  We  feel  no  hesitation 
in  confining  these  expressions  to  those  privileges  and  immuni- 
ties which  are  fundamental ;  which  belong  of  right  to  the  citizens 
of  all  free  governments,  and  which  have  at  all  times  been  enjoyed 
by  citizens  of  the  several  States  which  compose  this  Union,  from 
the  time  of  their  becoming  free,  independent,  and  sovereign. 
What  these  fundamental  principles  are,  it  would  be  more  tedious 
than  difficult  to  enumerate.  They  may  all,  however,  be  compre- 
hended under  the  following  general  heads:  protection  by  the 
government,  with  the  right  to  acquire  and  possess  property  of 
every  kind,  and  to  pursue  and  obtain  happiness  and  safety,  sub- 
ject, nevertheless,  to  such  restraints  as  the  government  may 
prescribe  for  the  general  good  of  the  whole."  [The  court  then 
cites  Ward  v.  The  State  of  Maryland,  12  Wallace,  430,  and  Paul 
v.  Virginia,  8  Wallace,  180.] 

The  constitutional  provision  there  alluded  to  did  not  create 
those  rights,  which  it  called  privileges  and  immunities  of  citizens 
of  the  States.  It  threw  around  them  in  that  clause  no  security 
for  the  citizen  of  the  State  in  which  they  were  claimed  or  exer- 
cised. Nor  did  it  profess  to  control  the  power  of  the  State  govern- 
ments over  the  rights  of  its  own  citizens. 

Its  sole  purpose  was  to  declare  to  the  several  States,  that  what- 
ever those  rights,  as  you  grant  or  establish  them  to  your  own 
citizens,  or  as  you  limit  or  qualify,  or  impose  restrictions  on  their 


SLAUGHTER-HOUSE  CASES.  109 

exercise,  the  same,  neither  more  nor  less,  shall  be  the  measure  of 
the  rights  of  citizens  of  other  States  within  your  jurisdiction. 

It  would  be  the  vainest  show  of  learning  to  attempt  to  prove  by 
citation  of  authority,  that  up  to  the  adoption  of  the  recent 
amendments,  no  claim  or  pretense  was  set  up  that  those  rights 
depended  on  the  Federal  government  for  their  existence  or  pro- 
tection, beyond  the  very  few  express  limitations  which  the  Fed- 
eral Constitution  imposed  upon  the  States — such,  for  instance,  as 
the  prohibition  against  ex  post  facto  laws,  bills  of  attainder,  and 
laws  impairing  the  obligation  of  contracts.  But  with  the  excep- 
tion of  these  and  a  few  other  restrictions,  the  entire  domain  of 
the  privileges  and  immunities  of  citizens  of  the  States,  as  above 
defined,  lay  within  the  constitutional  and  legislative  power  of  the 
States,  and  without  that  of  the  Federal  government.  Was  it  the 
purpose  of  the  fourteenth  amendment,  by  the  simple  declaration 
that  no  State  should  make  or  enforce  any  law  which  shall  abridge 
the  privileges  and  immunities  of  citizens  of  the  United  States,  to 
transfer  the  security  and  protection  of  all  the  civil  rights  which 
we  have  mentioned,  from  the  States  to  the  Federal  government  ? 
And  where  it  is  declared  that  Congress  shall  have  the  power  to 
enforce  that  article,  was  it  intended  to  bring  within  the  power  of 
Congress  the  entire  domain  of  civil  rights  heretofore  belonging 
exclusively  to  the  States  ? 

All  this  and  more  must  follow,  if  the  proposition  of  the  plain- 
tiffs in  error  be  sound.  For  not  only  are  these  rights  subject  to 
the  control  of  Congress  whenever  in  its  discretion  any  of  them  are 
supposed  to  be  abridged  by  State  legislation,  but  that  body  may 
also  pass  laws  in  advance,  limiting  and  restricting  the  exercise  of 
legislative  power  by  the  States,  in  their  most  ordinary  and  usual 
functions,  as  in  its  judgment  it  may  think  proper  on  all  such  sub- 
jects. And  still  further,  such  a  construction  followed  by  the 
reversal  of  the  judgments  of  the  Supreme  Court  of  Louisiana  in 
these  cases,  would  constitute  this  court  a  perpetual  censor  upon 
all  legislation  of  the  States,  on  the  civil  rights  of  their  own  citi- 
zens, with  authority  to  nullify  such  as  it  did  not  approve  as  con- 
sistent with  those  rights,  as  they  existed  at  the  time  of  the  adop- 
tion of  this  amendment.  The  argument,  we  admit,  is  not  always 
the  most  conclusive  which  is  drawn  from  the  consequences  urged 
against  the  adoption  of  a  particular  construction  of  an  instru- 
ment. But  when,  as  in  the  case  before  us,  these  consequences  are 
so  serious,  so  far-reaching  and  pervading,  so  great  a  departure 
from  the  structure  and  spirit  of  our  institutions;  when  th«- 
is  to  fetter  and  degrade  the  State  governments  by  subjecting 


110  CASES  ON  CONSTITUTIONAL  LAW. 

them  to  the  control  of  Congress,  in  the  exercise  of  powers  here- 
tofore universally  conceded  to  them  of  the  most  ordinary  and 
fundamental  character;  when  in  fact  it  radically  changes  the 
whole  theory  of  the  relations  of  the  State  and  Federal  govern- 
ments to  each  other  and  of  both  these  governments  to  the  people ; 
the  argument  has  a  force  that  is  irresistible,  in  the  absence  of 
language  which  expresses  such  a  purpose  too  clearly  to  admit  of 
doubt. 

We  are  convinced  that  no  such  results  were  intended  by  the 
Congress  which  proposed  these  amendments,  nor  by  the  legis- 
latures of  the  States  which  ratified  them. 

Having  shown  that  the  privileges  and  immunities  relied  on  in 
the  argument  are  those  which  belong  to  citizens  of  the  States  as 
such,  and  that  they  are  left  to  the  State  governments  for  security 
and  protection,  and  not  by  this  article  placed  under  the  special 
care  of  the  Federal  government,  we  may  hold  ourselves  excused 
from  defining  the  privileges  and  immunities  of  citizens  of  the 
United  States  which  no  State  can  abridge,  until  some  case  involv- 
ing those  privileges  may  make  it  necessary  to  do  so. 

But  lest  it  should  be  said  that  no  such  privileges  and  immuni- 
ties are  to  be  found  if  those  we  have  been  considering  are  ex- 
cluded, we  venture  to  suggest  some  which  owe  their  existence 
to  the  Federal  government,  its  National  character,  its  Constitu- 
tion, or  its  laws. 

One  of  these  is  well  described  in  the  case  of  Crandall  v.  Nevada, 
6  Wall.  36.  It  is  said  to  be  the  right  of  the  citizens  of  this  great 
country,  protected  by  implied  guarantees  of  its  Constitution,  ' '  to 
come  to  the  seat  of  government  to  assert  any  claim  he  may  have 
upon  that  government,  to  transact  any  business  he  may  have 
with  it,  to  seek  its  protection,  to  share  its  offices,  to  engage  in 
administering  its  functions.  He  has  the  right  of  free  access  to 
its  seaports,  through  which  all  operations  of  foreign  commerce 
are  conducted,  to  the  sub-treasuries,  land  offices,  and  courts  of 
justice  in  the  several  States."  And  quoting  from  the  language 
of  Chief  Justice  Taney  in  another  case,  it  is  said  "that  for  all 
the  great  purposes  for  which  the  Federal  government  was  es- 
tablished, we  are  one  people,  with  one  common  country,  we  are 
all  citizens  of  the  United  States ; ' '  and  it  is,  as  such  citizens,  that 
their  rights  are  supported  in  this  court  in  Crandall  v.  Nevada. 

Another  privilege  of  a  citizen  of  the  United  States  is  to  de- 
mand the  care  and  protection  of  the  Federal  government  over 
his  life,  liberty,  and  property  when  on  the  high  seas  or  within  the 
jurisdiction  of  a  foreign  government.  Of  this  there  can  be  no 


SLAUGHTER-HOUSE  CASES.  m 

doubt,  nor  that  the  right  depends  upon  his  character  as  a  citizen 
of  the  United  States.  The  right  to  peaceably  assemble  and  peti- 
tion for  redress  of  grievances,  the  privilege  of  the  writ  of  habeas 
corpus,  are  rights  of  the  citizen  guaranteed  by  the  Federal  Con- 
stitution. The  right  to  use  the  navigable  waters  of  the  United 
States,  however  they  may  penetrate  the  territory  of  the  several 
States,  all  rights  secured  to  our  citizens  by  treaties  with  foreign 
nations,  are  dependent  upon  citizenship  of  the  United  States,  and 
not  citizenship  of  a  State.  One  of  these  privileges  is  conferred 
by  the  very  article  under  consideration.  It  is  that  a  citizen  of 
the  United  States  can,  of  his  own  volition,  become  a  citizen  of  any 
State  of  the  Union  by  a  bona  fide  residence  therein,  with  the  same 
rights  as  other  citizens  of  that  State.  To  these  may  be  added  the 
rights  secured  by  the  thirteenth  and  fifteenth  articles  of  amend- 
ment, and  by  the  other  clause  of  the  fourteenth,  next  to  be  con- 
sidered. 

But  it  is  useless  to  pursue  this  branch  of  the  inquiry,  since  we 
are  of  opinion  that  the  rights  claimed  by  these  plaintiffs  in  error, 
if  they  have  any  existence,  are  not  privileges  and  immunities  of 
citizens  of  the  United  States  within  the  meaning  of  the  clause  of 
the  fourteenth  amendment  under  consideration.  .  .  . 

The  argument  has  not  been  much  pressed  in  these  cases  that 
the  defendant's  charter  deprives  the  plaintiffs  of  their  property 
without  due  process  of  law,  or  that  it  denies  to  them  the  equal 
protection  of  the  law.  The  first  of  these  paragraphs  has  been  in 
the  Constitution  since  the  adoption  of  the  fifth  amendment,  as  a 
restraint  upon  the  Federal  power.  It  is  also  to  be  found  in  some 
form  of  expression  in  the  constitutions  of  nearly  all  the  States,  M 
a  restraint  upon  the  power  of  the  States.  This  law,  then,  has 
practically  been  the  same  as  it  now  is  during  the  existence  of  the 
government,  except  so  far  as  the  present  amendment  may  place 
the  restraining  power  over  the  States  in  this  matter  in  the  hands 
of  the  Federal  government. 

We  are  not  without  judicial  interpretation,  therefore,  both 
State  and  National,  of  the  meaning  of  this  clause.  And  it  is  suffi- 
cient to  say  that  under  no  construction  of  that  provision  that  we 
have  ever  seen,  or  any  that  we  deem  admissible,  can  the  restraint 
imposed  by  the  State  of  Louisiana  upon  the  exercise  of  their  trade 
by  the  butchers  of  New  Orleans  be  held  to  be  a  deprivation  of 
property  within  the  meaning  of  that  provision. 

"Nor  shall  any  State  deny  to  any  person  within  its  jurisdic- 
tion the  equal  protection  of  the  laws." 

In  the  light  of  the  history  of  these  amendments,  and  the  per- 


112  CASES  ON  CONSTITUTIONAL  LAW. 

vading  purpose  of  them,  which  we  have  already  discussed,  it  is  not 
difficult  to  give  a  meaning  to  this  clause.  The  existence  of  laws 
in  the  States  where  the  newly  emancipated  negroes  resided, 
which  discriminated  with  gross  injustice  and  hardship  against 
them  as  a  class,  was  the  evil  to  be  remedied  by  this  clause,  and 
by  it  such  laws  are  forbidden. 

If,  however,  the  States  did  not  conform  their  laws  to  its  re- 
quirements, then  by  the  fifth  section  of  the  article  of  amendment 
Congress  was  authorized  to  enforce  it  by  suitable  legislation.  We 
doubt  very  much  whether  any  action  of  a  State  not  directed  by 
way  of  discrimination  against  the  negroes  as  a  class,  or  on  ac- 
count of  their  race,  will  ever  be  held  to  come  within  the  purview 
of  this  provision.1  It  is  so  clearly  a  provision  for  that  race  and 
that  emergency,  that  a  strong  case  would  be  necessary  for  its 
application  to  any  other.  But  as  it  is  a  State  that  is  to  be  dealt 
with,  and  not  alone  the  validity  of  its  laws,  we  may  safely  leave 
that  matter  until  Congress  shall  have  exercised  its  power,  or 
some  case  of  State  oppression,  by  denial  of  equal  justice  in  its 
courts,  shall  have  claimed  a  decision  at  our  hands.  We  find  no 
such  case  in  the  one  before  us,  and  do  not  deem  it  necessary  to 
go  over  the  argument  again,  as  it  may  have  relation  to  this  par- 
ticular clause  of  the  amendment. 

In  the  early  history  of  the  organization  of  the  government,  its 
statesmen  seem  to  have  divided  on  the  line  which  should  separate 
the  powers  of  the  National  government  from  those  of  the  State 
governments,  and  though  this  line  has  never  been  very  well  de- 
fined in  public  opinion,  such  a  division  has  continued  from  that 
day  to  this. 

The  adoption  of  the  first  eleven  amendments  to  the  Constitu- 
tion so  soon  after  the  original  instrument  was  accepted,  shows  a 
prevailing  sense  of  danger  at  that  time  from  the  Federal  power. 
And  it  cannot  be  denied  that  such  a  jealousy  continued  to  exist 

1  The  learned  judge  proved  to  be  a  poor  prophet.  It  is  undoubtedly  true 
that  the  protection  of  the  newly-liberated  negro  was  the  dominant  motive 
in  the  adoption  of  the  Fourteenth  Amendment,  but  it  contains  no  mention 
of  the  negro,  and  its  language  is  of  universal  application  to  all  citizens  and 
in  some  cases  to  all  residents  of  the  United  States.  A  careful  writer  said  in 
1912 :  "Of  the  six  hundred  and  four  cases  involving  the  Fourteenth  Amend- 
ment in  which  the  Supreme  Court  has  delivered  opinions  since  1868,  only 
twenty-eight  deal  with  questions  involving  the  negro  race;  that  Is  to  say, 
less  than  five  per  cent  of  the  total  litigation  under  the  Amendment."  Col- 
lins, The  Fourteenth  Amendment  and  the  States,  46.  Compare  the  dictum 
of  Justice  Miller  with  the  language  of  the  court  in  Yick  Wo  v.  Hopkins,  118 
U.  S.  356.— Ed. 


SLAUGHTER-HOUSE  CASES.  113 

with  many  patriotic  men  until  the  breaking  out  of  the  late  civil 
war.  It  was  then  discovered  that  the  true  danger  of  the  perpe- 
tuity of  the  Union  was  in  the  capacity  of  the  State  organizations 
to  combine  and  concentrate  all  the  powers  of  the  State,  and  of 
contiguous  States,  for  a  determined  resistance  to  the  General 
Government. 

Unquestionably  this  has  given  great  force  to  the  argument,  and 
added  largely  to  the  number,  of  those  who  believe  in  the  neces- 
sity of  a  strong  National  government. 

But,  however  pervading  this  sentiment,  and  however  it  may 
have  contributed  to  the  adoption  of  the  amendments  we  have  been 
considering,  we  do  not  see  in  those  amendments  any  purpose  to 
destroy  the  main  features  of  the  general  system.  Under  the  pres- 
sure of  all  the  excited  feeling  growing  out  of  the  war,  our  states- 
men have  still  believed  that  the  existence  of  the  States  with  pow- 
ers for  domestic  and  local  government,  including  the  regulation 
of  civil  rights — the  rights  of  person  and  of  property — was  essen- 
tial to  the  perfect  working  of  our  complex  form  of  government, 
though  they  may  have  thought  proper  to  impose  additional  lim- 
itations on  the  States,  and  to  confer  additional  power  on  that 
of  the  Nation. 

But  whatever  fluctuations  may  be  seen  in  the  history  of  pub- 
lic opinion  on  this  subject  during  the  period  of  our  national 
existence,  we  think  it  will  be  found  that  this  court,  so  far  as  its 
functions  require,  has  always  held  with  a  steady  and  even  hand 
the  balance  between  State  and  Federal  power,  and  we  tnist  that 
such  may  continue  to  be  the  history  of  its  relation  to  that  subject 
so  long  as  it  shall  have  duties  to  perform  which  demand  of  it  a 
construction  of  the  Constitution,  or  any  of  its  parts. 

The  judgments  of  the  Supreme  Court  of  Louisiana  in  these 
cases  are  affirmed. 

[MB.  JUSTICE  FIELD  delivered  a  dissenting  opinion  in  which 
MR.  CHIEF  JUSTICE  CHASE,  MR.  JUSTICE  BRADLEY  and  MB.  JUS- 
TICE SWAYNE  concurred.  The  last  two  also  delivered  separate 
dissenting  opinions.] 

NOTE. — It  is  interesting  to  compare  with  the  principal  case  the  riew  taken 
by  Congress  of  the  meaning  and  scope  of  the  Fourteenth  Amendment  The 
discussion  is  well  -summarized  in  Flack,  The  Adoption  of  the  Fourteenth 
Amendment,  ch.  v.  See  also  Outhrie,  Lectvret  on  the  Fourteenth  Amend- 
ment, and  an  acute  discussion  of  the  history  and  meaning  of  all  the  war 
amendments  incorporated  by  Chief  Justice  Cooley  in  his  edition  of  Story's 
Commentaries,  II,  632-692. 

C.C.L.-I 


114  CASES  ON  CONSTITUTIONAL  LAW. 

TWINING  v.  STATE  OF  NEW  JERSEY. 

SUPREME  COURT  OF  THE  UNITED  STATES.    1908. 
211  U.  S.  78;     53  Lawyers'  Ed.  97. 

Error  to  the  Court  of  Errors  and  Appeals  of  the  State  of  New 
Jersey. 

[Twining  and  Cornell,  plaintiffs  in  error,  directors  of  a  bank 
in  New  Jersey,  were  indicted  for  having  knowingly  exhibited  a 
false  paper  to  a  State  bank  examiner  with  intent  to  deceive  him 
as  to  the  condition  of  the  bank.  At  the  trial  the  defendants  called 
no  witnesses  and  did  not  testify  in  their  own  behalf.  In  his 
charge  to  the  jury  the  judge  said :  ' '  Because  a  man  does  not  go 
upon  the  stand  you  are  not  necessarily  justified  in  drawing  an 
inference  of  guilt.  But  you  have  a  right  to  consider  the  fact 
that  he  does  not  go  upon  the  stand  where  a  direct  accusation  is 
made  against  him."  The  defendants  were  convicted  and  sen- 
tenced to  imprisonment  for  six  and  four  years  respectively.  This 
was  affirmed  by  the  Court  of  Errors  and  Appeals,  and  the  case 
was  then  appealed  on  the  ground  that  the  charge  to  the  jury  de- 
prived the  defendants  of  rights  and  immunities  which  were  pro- 
tected by  the  Fourteenth  Amendment.] 

MB.  JUSTICE  MOODY  .  .  .  delivered  the  opinion  of  the 
court.  .  .  . 

The  general  question,  therefore,  is,  whether  such  a  law  vio- 
lates the  Fourteenth  Amendment,  either  by  abridging  the  privi- 
leges or  immunities  of  citizens  of  the  United  States,  or  by  depriv- 
ing persons  of  their  life,  liberty  or  property  without  due  process 
of  law.  In  order  to  bring 'themselves  within  the  protection  of 
the  Constitution  it  is  incumbent  on  the  defendants  to  prove  two 
propositions:  first,  that  the  exemption  from  compulsory  self-in- 
crimination  is  guaranteed  by  the  Federal  Constitution  against 
impairment  by  the  States;  and,  second,  if  it  be  so  guaranteed, 
that  the  exemption  was  in  fact  impaired  in  the  case  at  bar.  The 
first  proposition  naturally  presents  itself  for  earlier  considera- 
tion. If  the  right  here  asserted  is  not  a  Federal  right,  that  is 
the  end  of  the  case.  We  have  no  authority  to  go  further  and 
determine  whether  the  State  court  has  erred  in  the  interpre- 
tation and  enforcement  of  its  own  laws. 

The  exemption  from  testimonial  compulsion,  that  is,  from  dis- 
closure as  a  witness  of  evidence  against  oneself,  forced  by  any 
form  of  legal  process,  is  universal  in  American  law,  though  there 
may  be  differences  as  to  its  exact  scope  and  limits.  At  the  time 


TWINING  v.  STATE  OP  NEW  JERSEY.  115 

of  the  formation  of  the  Union  the  principle  that  no  person  could 
be  compelled  to  be  a  witness  against  himself  had  become  em- 
bodied in  the  common  law  and  distinguished  it  from  all  other 
systems  of  jurisprudence.  It  was  generally  regarded  then,  as 
now,  as  a  privilege  of  great  value,  a  protection  to  the  innocent 
though  a  shelter  to  the  guilty,  and  a  safeguard  against  heedless, 
unfounded  or  tyrannical  prosecutions.  Five  of  the  original  thir- 
teen States  (North  Carolina,  1776;  Pennsylvania,  1776;  Virginia, 
1776;  Massachusetts,  1780;  New  Hampshire,  1784)  had  then 
guarded  the  principle  from  legislative  or  judicial  change  by 
including  it  in  constitutions  or  bills  of  rights;  Maryland  had 
provided  in  her  constitution  (1776)  that  "no  man  ought  to  be 
compelled  to  give  evidence  against  himself,  in  a  common  court 
of  law,  or  in  any  other  court,  but  in  such  cases  as  have  been  usu- 
ally practiced  in  this  State  or  may  hereafter  be  directed  by  the 
legislature;"  and  in  the  remainder  of  those  States  there  seems 
to  be  no  doubt  that  it  was  recognized  by  the  courts.  The  privi- 
lege was  not  included  in  the  Federal  Constitution  as  originally 
adopted,  but  was  placed  in  one  of  the  ten  Amendments  which 
were  recommended  to  the  States  by  the  first  Congress,  and  by 
them  adopted.  Since  then  all  the  States  of  the  Union  have, 
from  time  to  time,  with  varying  form  but  with  uniform  mean- 
ing, included  the  privilege  in  their  constitutions,  except  the 
States  of  New  Jersey  and  Iowa,  and  in  those  States  it  is  held 
to  be  part  of  the  existing  law.  State  v.  Zdanowicz,  69  N.  J.  L. 
308;  State  v.  Height,  117  Iowa,  650.  It  is  obvious  from  this 
short  statement  that  it  has  been  supposed  by  the  States  that,  so 
far  as  the  state  courts  are  concerned,  the  privilege  had  its  origin 
in  the  constitutions  and  laws  of  the  States,  and  that  persons 
appealing  to  it  must  look  to  the  State  for  their  protection.  In- 
deed, since  by  the  unvarying  decisions  of  this  court  the  first  ten 
Amendments  of  the  Federal  Constitution  are  restrictive  only  of 
National  action,  there  was  nowhere  else  to  look  up  to  the  time  of 
the  adoption  of  the  Fourteenth  Amendment,  and  the  State,  at 
least  until  then,  might  give,  modify  or  withhold  the  privilege  at 
its  will.  .  .  . 

The  defendants  contend,  in  the  first  place,  that  the  exemption 
from  self-incrimination  is  one  of  the  privileges  and  immunities 
of  citizens  of  the  United  States  which  the  Fourteenth  Amend- 
ment forbids  the  States  to  abridge.  It  is  not  argued  that  the 
defendants  are  protected  by  that  part  of  the  Fifth  Amendment 
which •  provides  that  "no  person  .  .  .  shall  be  compelled  in 
any  criminal  case  to  be  a  witness  against  himself,"  for  it  is 


116  CASES  ON  CONSTITUTIONAL  LAW. 

recognized  by  counsel  that  by  a  long  line  of  decisions  the  first 
ten  Amendments  are  not  operative  on  the  States.  Barron  v. 
Baltimore,  7  Pet.  243 ;  Spies  v.  Illinois,  123  U.  S.  131 ;  Brown 
v.  New  Jersey,  175  U.  S.  172 ;  Barrington  v.  Missouri,  205  U.  S. 
483.  But  it  is  argued  that  this  privilege  is  one  of  the  funda- 
mental rights  of  National  citizenship,  placed  under  National  pro- 
tection by  the  Fourteenth  Amendment,  and  it  is  specifically 
argued  that  the  "privileges  and  immunities  of  citizens  of  the 
United  States,"  protected  against  State  action  by  that  Amend- 
ment, include  those  fundamental  personal  rights  which  were  pro- 
tected against  National  action  by  the  first  eight  Amendments; 
that  this  was  the  intention  of  the  framers  of  the  Fourteenth 
Amendment,  and  that  this  part  of  it  would  otherwise  have  little 
or  no  meaning  and  effect.  These  arguments  are  not  new  to  this 
court  and  the  answer  to  them  is  found  in  its  decisions.  The 
meaning  of  the  phrase  "privileges  and  immunities  of  citizens  of 
the  United  States, ' '  as  used  in  the  Fourteenth  Amendment,  came 
under  early  consideration  in  the  Slaughter-House  Cases,  16  Wall. 
36..  .  .  . 

There  can  be  no  doubt,  so  far  as  the  decision  in  the  Slaughter 
House  Cases  has  determined  the  question,  that  the  civil  rights 
sometimes  described  as  fundamental  and  inalienable,  which  be- 
fore the  war  Amendments  were  enjoyed  by  state  citizenship  and 
protected  by  state  government,  were  left  untouched  by  this  clause 
of  the  Fourteenth  Amendment.  Criticism  of  this  case  has  never 
entirely  ceased,  nor  has  it  ever  received  universal  assent  by 
members  of  this  court.  Undoubtedly,  it  gave  much  less  effect 
to  the  Fourteenth  Amendment  than  some  of  the  public  men  active 
in  framing  it  intended,  and  disappointed  many  others.  On  the 
other  hand,  if  the  views  of  the  minority  had  prevailed  it  is  easy 
to  see  how  far  the  authority  and  independence  of  the  States 
would  have  been  diminished,  by  subjecting  all  their  legislative 
and  judicial  acts  to  correction  by  the  legislative  and  review  by 
the  judicial  branch  of  the  National  Government.  But  we  need 
not  now  inquire  into  the  merits  of  the  original  dispute.  This 
part  at  least  of  the  Slaughter-House  Cases  has  been  steadily  ad- 
hered to  by  this  court,  so  that  it  was  said  of  it,  in  a  case  where 
the  same  clause  of  the  amendment  was  under  consideration 
(Maxwell  v.  Dow,  176  U.  S.  581,  591),  "The  opinion  upon  the 
matters  actually  involved  and  maintained  by  the  judgment  in 
the  case  has  never  been  doubted  or  overruled  by  any  judgment 
of  this  court."  The  distinction  between  National  and  state  citi- 
zenship and  their  respective  privileges  there  drawn  has  come  to 


TWINING  v.  STATE  OP  NEW  JERSKV.  117 

be  firmly  established.  And  so  it  was  held  that  the  right  of  peace- 
able assembly  for  a  lawful  purpose  (it  not  appearing  that  the 
purpose  had  any  reference  to  the  National  Government)  was 
not  a  right  secured  by  the  Constitution  of  the  United  States, 
although  it  was  said  that  the  right  existed  before  the  adoption 
of  the  Constitution  of  the  United  States,  and  that  "it  is  and 
always  has  been  one  of  the  attributes  of  citizenship  under  a  free 
government."  United  States  v.  Cruikshank,  92  I  561 

And  see  Hodges  v.  Tinted  States,  203  U.  S.  1.  In  each  case  the 
Slaughter-House  Cases  were  cited  by  the  court,  and  in  the  lat- 
ter case  the  rights  described  by  Mr.  Justice  Washington  were 
again  treated  as  rights  of  state  citizenship  under  state  protec- 
tion. If,  then,  it  be  assumed,  without  deciding  the  point,  that 
an  exemption  from  compulsory  self-iucrimination  is  what  is  de- 
scribed as  a  fundamental  right  belonging  to  all  who  live  under 
a  free  government,  and  incapable  of  impairment  by  legislation 
or  judicial  decision,  it  is,  so  far  as  the  States  are  concerned,  a 
fundamental  right  inherent  in  state  citizenship,  and  is  a  privi- 
lege or  immunity  of  that  citizenship  only.  Privileges  and  im- 
munities of  citizens  of  the  United  States,  on  the  other  hand,  are 
only  such  as  arise  out  of  the  nature  and  essential  character  of 
the  National  Government,  or  are  specifically  granted  or  secun  d 
to  all  citizens  or  persons  by  the  Constitution  of  the  United  States. 
Slaughter-House  Cases,  16  Wall.  70;  In  re  Kemmler,  136  U.  S. 
436,  448;  Duncan  v.  Missouri,  152  U.  S.  377,  382. 

Thus  among  the  rights  and  privileges  of  National  citizenship 
recognized  by  this  court  are  the  right  to  pass  freely  from  State 
to  State,  Crandall  v.  Nevada,  6  Wall.  35;  the  right  to  petition 
Congress  for  a  redress  of  grievances,  United  States  v.  Cruik- 
shank, 92  U.  S.  542;  the  right  to  vote  for  National  officers,  Ex 
parte  Yarbrough,  110  U.  S.  651 ;  Wiley  v.  Sinkler,  179  U.  S.  58; 
the  right  to  enter  the  public  lands,  United  States  v.  Waddell. 
112  U.  S.  76;  the  right  to  be  protected  against  violence  while 
in  the  lawful  custody  of  the  United  States  marshal,  Logan  v. 
I'nited  Star.  s.  1  U  U.  S.  263;  and  the  right  to  inform  the  United 
States  authorities  of  violation  of  its  laws.  In  re  Quarles,  158 
U.  S.  532.  Most  of  these  cases  were  indictments  against  indi- 
viduals for  conspiracies  to  deprive  persons  of  rights  secured  by 
the  Constitution  of  the  United  States,  and  met  with  a  different 
fate  in  this  court  from  the  indictments  in  I'nited  States  v. 
Cruikshank  and  Hodges  v.  United  States,  because  the  rights  in 
the  latter  cases  were  rights  of  state  and  not  of  National  citizen- 
ship. But  assuming  it  to  be  true  that  the  exemption  from  self- 


118  CASES  ON  CONSTITUTIONAL  LAW. 

incrimination  is  not,  as  a  fundamental  right  of  National  citizen- 
ship, included  in  the  privileges  and  immunities  of  citizens  of  the 
United  States,  counsel  insist  that,  as  a  right  specifically  granted 
or  secured  by  the  Federal  Constitution,  it  is  included  in  them. 
This  view  is  based  upon  the  contention  which  must  now  be  ex- 
amined, that  the  safeguards  of  personal  rights  which  are  enu- 
merated in  the  first  eight  Articles  of  amendment  to  the  Federal 
Constitution,  sometimes  called  the  Federal  Bill  of  Rights,  though 
they  were  by  those  Amendments  originally  secured  only  against 
National  action,  are  among  the  privileges  and  immunities  of  citi- 
zens of  the  United  States,  which  this  clause  of  the  Fourteenth 
Amendment  protects  against  state  action.  This  view  has 
been,  at  different  times,  expressed  by  justices  of  this  court  (Mr. 
Justice  Field  in  0  'Niel  v.  Vermont,  144  U.  S.  323,  361 ;  Mr.  Jus- 
tice Harlan  in  the  same  case,  370,  and  in  Maxwell  v.  Dow,  176 
U.  S.  606,  617)  and  was  undoubtedly  that  entertained  by  some 
of  those  who  framed  the  Amendment.  It  is,  however,  not  profit- 
able to  examine  the  weighty  arguments  in  its  favor,  for  the 
question  is  no  longer  open  in  this  court.  The  right  of  trial  by 
jury  in  civil  cases,  guaranteed  by  the  Seventh  Amendment 
(Walker  v.  Sauvinet,  92  U.  S.  90),  and  the  right  to  bear  arms 
guaranteed  by  the  Second  Amendment  (Presser  v.  Illinois,  116 
U.  S.  252),  have  been  distinctly  held  not  to  be  privileges  and  im- 
munities of  the  United  States  guaranteed  by  the  Fourteenth 
Amendment  against  abridgement  by  the  States,  and  in  effect  the 
same  decision  was  made  in  respect  of  the  guarantee  against  prose- 
cution, except  by  indictment  of  a  grand  jury,  contained  in  the 
Fifth  Amendment  (Hurtado  v.  California,  110  U.  S.  516),  and 
in  respect  to  the  right  to  be.  confronted  with  witnesses  contained 
in  the  Sixth  Amendment.  West  v.  Louisiana,  194  U.  S.  258.  In 
Maxwell  v.  Dow,  supra,  where  the  plaintiff  in  error  had  been 
convicted  in  a  state  court  of  a  felony  upon  information,  and  by 
a  jury  of  eight  persons,  it  was  held  that  the  indictment,  made 
indispensable  by  the  Fifth  Amendment,  and  the  trial  by  jury 
guaranteed  by  the  Sixth  Amendment  were  not  privileges  and  im- 
munities of  citizens  of  the  United  States,  as  those  words  were 
used  in  the  Fourteenth  Amendment.  .  .  . 

We  conclude,  therefore,  that  the  exemption  from  compulsory 
self-incrimination  is  not  a  privilege  or  immunity  of  National 
citizenship  guaranteed  by  this  clause  of  the  Fourteenth  Amend- 
ment against  abridgement  by  the  States.  .  .  . 

[The  remaining  portion  of  this  opinion,  dealing  with  the  mean- 
ing of  the  phrase  "due  process  of  law,"  is  given  post,  page  319.] 


GUINN  AND  BEAL  v.  UNITED  STATES.          119 

NOTE. — The  Supreme  Court  has  never  attempted  any  fuD  and  exact  defi- 
nition of  the  phrase  ' '  privileges  and  immunities  of  citizens ' '  as  used  in  the 
Constitution,  art.  IV,  see.  2,  and  in  the  Fourteenth  Amendment  As  to  what 
is  comprehended  in  the  term  see  Butchers'  Union  Slaughter  House  Co.  v. 
Crescent  City  Live-Stock  Landing  Co.  (1884),  111  U.  8.  746  (the  right  to 
pursue  any  of  the  ordinary  occupations);  United  States  v.  Reese  (1875), 
92  U.  8.  214  (right  to  be  free  from  discrimination  in  the  exercise-  of  the 
franchise);  Minor  v.  Happersett  (1874),  21  Wallace,  162  (right  to  vote); 
Bradwell  v.  Illinois  (1873),  16  Wallace,  130;  In  re  Lockwood  (1894),  154 
U.  8.  116  (right  to  practice  law) ;  Bartemeyer  v.  Iowa  (1873),  16  Wallace, 
130  (right  to  sell  liquor).  The  protection  of  the  Fourteenth  Amendment  is 
afforded  only  against  acts  of  the  States,  and  not  against  acts  of  individuals. 
United  States  v.  Cruikshank  (1876),  92  U.  8.  542;  Virginia  v.  Bives  (1879), 
100  U.  8.  313;  Civil  Rights  Cases  (1883),  109  U.  8.  3;  Hodges  v.  United 
States  (1906),  203  U.  8.  1.  The  same  rule  applies  to  the  Fifteenth  Amend- 
ment James  v.  Bowman  (1903),  190  U.  8.  127. 


GUINN  AND  BEAL  v.  UNITED  STATES. 

SUPREME  COURT  OP  THE  UNITED  STATES.    1915. 
238  U.  8.  347;  59  Lawyers'  Ed. 

Certificate  from  the  Circuit  Court  of  Appeals. 

MB.  CHIEF  JUSTICE  WHITE  delivered  the  opinion  of  the  court 
This  case  is  before  us  on  a  certificate  drawn  by  the  court  below 
as  the  basis  of  two  questions  which  are  submitted  for  our  solu- 
tion in  order  to  enable  the  court  correctly  to  decide  issues  in  a 
case  which  it  has  under  consideration.  Those  issues  arose  from 
an  indictment  and  conviction  of  certain  election  officers  of  the 
State  of  Oklahoma  (the  plaintiffs  in  error),  of  the  crime  of 
having  conspired  unlawfully,  wilfully  and  fraudulently  to  de- 
prive certain  negro  citizens,  on  account  of  their  race  and  color, 
of  a  right  to  vote  at  a  general  election  held  in  that  State  in  1910, 
they  being  entitled  to  vote  under  the  state  law  and  which  right 
was  secured  to  them  by  the  Fifteenth  Amendment  to  the  Consti- 
tution of  the  United  States.  .  .  . 

Suffrage  in  Oklahoma  was  regulated  by  §  1,  Article  III  of  the 
Constitution  tinder  which  the  State  was  admitted  into  the  Union. 
Shortly  after  the  admission  there  was  submitted  an  amendment 
to  the  Constitution  making  a  radical  change  in  that  article  which 
was  adopted  prior  to  November  8,  1910.  At  an  election  for 
members  of  Congress  which  followed  the  adoption  of  this  Amend- 
ment, certain  election  officers  in  enforcing  its  provisions  refused 
to  allow  certain  negro  citizens  to  vote  who  were  clearly  entitled 


120  CASES  ON  CONSTITUTIONAL  LAW. 

to  vote  under  the  provision  of  the  Constitution  under  which  the 
State  was  admitted,  that  is,  before  the  amendment,  and  who,  it 
is  equally  clear,  were  not  entitled  to  vote  under  the  provision  of 
the  suffrage  amendment  if  that  amendment  governed.  The  per- 
sons so  excluded  based  their  claim  of  right  to  vote  upon  the 
original  Constitution  and  upon  the  assertion  that  the  suffrage 
amendment  was  void  because  in  conflict  with  the -prohibitions  of 
the  Fifteenth  Amendment  and  therefore  afforded  no  basis  for 
denying  them  the  right  guaranteed  and  protected  by  that  Amend- 
ment. And  upon  the  assumption  that  this  claim  was  justified 
and  that  the  election  officers  had  violated  the  Fifteenth  Amend- 
ment in  denying  the  right  to  vote,  this  prosecution,  as  we  have 
said,  was  commenced.  .  .  . 

The  questions  which  the  court  below  asks  are  these : 

"1.  "Was  the  amendment  to  the  constitution  of  Oklahoma,  here- 
tofore set  forth,  valid? 

"2.  Was  that  amendment  void  in  so  far  as  it  attempted  to 
debar  from  the  right  or  privilege  of  voting  for  a  qualified  candi- 
date for  a  Member  of  Congress  in  Oklahoma,  unless  they  were 
able  to  read  and  write  any  section  of  the  constitution  of  Okla- 
homa, negro  citizens  of  the  United  States  who  were  otherwise 
qualified  to  vote  for  a  qualified  candidate  for  a  Member  of  Con- 
gress in  that  State,  but  who  were  not,  and  none  of  whose  lineal 
ancestors  was,  entitled  to  vote  under  any  form  of  government  on 
January  1,  1866,  or  at  any  time  prior  thereto,  because  they  were 
then  slaves?" 

As  these  questions  obviously  relate  to  the  provisions  concern- 
ing suffrage  in  the  original  constitution  and  the  amendment  to 
those  provisions  which  forms  the  basis  of  the  controversy,  we 
state  the  text  of  both.  The  original  clause  so  far  as  material 
was  this: 

"The  qualified  electors  of  the  State  shall  be  male  citizens  of 
the  United  States,  male  citizens  of  the  State,  and  male  persons 
of  Indian  descent  native  of  the  United  States,  who  are  over  the 
age  of  twenty-one  years,  who  have  resided  in  the  State  one  year, 
in  the  county  six  months,  and  in  the  election  precinct  thirty  days, 
next  preceding  the  election  at  which  any  such  elector  offers  to 
vote." 

And  this  is  the  amendment : 

"No  person  shall  be  registered  as  an  elector  of  this  State  or 
be  allowed  to  vote  in  any  election  herein,  unless  he  be  able  to  read 
and  write  any  section  of  the  constitution  of  the  State  of  Okla- 
homa ;  but  no  person  who  was,  on  January  1,  1866,  or  at  any  time 


OUINN  AND  HEAL  v.  UNITED  STATES.          121 

prior  thereto,  entitled  to  vote  under  any  form  of  government,  or 
who  at  that  time  resided  in  some  foreign  nation,  and  no  lineal 
descendant  of  such  person,  shall  IK?  denied  the  right  to  register 
and  vote  because  of  his  inability  to  so  read  and  write  sections  of 
such  constitution.  .  .  ." 

The  argument  of  the  Government  in  substance  says:  No  ques- 
tion is  made  by  the  Government  concerning  the  validity  of  the 
literacy  test  provided  for  in  the  amendment  under  consideration 
as  an  independent  standard  since  the  conclusion  is  plain  that 
that  test  rests  on  the  exercise  of  state  judgment  and  therefore 
cannot  be  here  assailed  either  by  disregarding  the  State's  power 
to  judge  on  the  subject  or  by  testing  its  motive  in  enacting  the 
provision.  The  real  question  involved,  so  the  argument  of  the 
Government  insists,  is  the  repugnancy  of  the  standard  which  the 
amendment  makes,  based  on  the  conditions  existing  on  January 
1,  1866,  because  on  its  face  and  inherently  considering  the  sub- 
stance of  things,  that  standard  is  a  mere  denial  of  the  restric- 
tions imposed  by  the  prohibitions  of  the  Fifteenth  Amendment 
and  by  necessary  result  re-creates  and  perpetuates  the  very  con- 
ditions which  the  Amendment  was  intended  to  destroy.  From 
this  it  is  urged  that  no  legitimate  discretion  could  have  entered 
into  the  fixing  of  such  standard  which  involved  only  the  determi- 
nation to  directly  set  at  naught  or  by  indirection  avoid  the  com- 
mands of  the  Amendment.  And  it  is  insistent  that  nothing  con- 
trary to  these  propositions  is  involved  in  the  contention  of  the 
Government  that  if  the  standard  which  the  suffrage  amendment 
fixes  based  upon  the  conditions  existing  on  January  1,  1866,  be 
found  to  be  void  for  the  reasons  urged,  the  other  and  literacy  test 
is  also  void,  since  that  contention  rests,  not  upon  any  assertion 
upon  the  part  of  the  Government  of  any  abstract  repugnancy  of 
the  literacy  test  to  the  prohibitions  of  the  Fifteenth  Amendment, 
but  upon  the  relation  between  that  test  and  the  other  as  formu- 
lated in  the  suffrage  amendment  and  the  inevitable  result  which 
it  is  deemed  must  follow  from  holding  it  to  be  void  if  the  other 
is  so  declared  to  be.  .  .  . 

The  questions  then  are:  (1)  Giving  to  *he  propositions  of  th»> 
Government  the  interpretation  which  the  Government  puts  upon 
them  and  assuming  that  the  suffrage  provision  has  the  significance 
which  the  Government  assumes  it  to  have,  is  that  provision  as  a 
matter  of  law -repugnant  to  the  Fifteenth  Amendment  t  which 
leads  us  of  course  to  consider  the  operation  and  effect  of  the 
Fifteenth  Amendment.  (2)  If  yes,  has  the  assailed  ann-inlin.-nt 
in  so  far  as  it  fixes  a  standard  for  voting  as  of  January  1.  1866, 


122  CASES  ON  CONSTITUTIONAL  LAW. 

the  meaning  which  the  Government  attributes  to  it?  which 
leads  us  to  analyze  and  interpret  that  provision  of  the  amend- 
ment. (3)  If  the  investigation  as  to  the  two  prior  subjects  estab- 
lishes that  the  standard  fixed  as  of  January  1,  1866,  is  void,  what 
if  any  effect  does  that  conclusion  have  upon  the  literacy  standard 
otherwise  established  by  the  amendment?  which  involves  deter- 
mining whether  that  standard,  if  legal,  may  survive  the  recog- 
nition of  the  fact  that  the  other  or  1866  standard  has  not  and 
never  had  any  legal  existence.  Let  us  consider  these  subjects 
under  separate  headings. 

1.  The  operation  and  effect  of  the  Fifteenth  Amendment. 
[Here  follows  the  text  of  the  Fifteenth  Amendment.] 

(a)  Beyond  doubt  the  Amendment  does  not  take  away  from 
the  state  governments  in  a  general  sense  the  power  over  suffrage 
which  has  belonged  to  those  governments  from  the  beginning  and 
without  the  possession  of  which  power  the  whole  fabric  upon 
which  the  division  of  state  and  national  authority  under  the 
Constitution  and  the  organization  of  both  governments  rest  would 
be  without  support  and  both  the  authority  of  the  nation  and  of 
the  State  would  fall  to  the  ground.    In  fact,  the  very  command 
of  the  Amendment  recognizes  the  possession  of  the  general  power 
by  the  State,  since  the  Amendment  seeks  to  regulate  its  exercise 
as  to  the  particular  subject  with  which  it  deals. 

(b)  But  it  is  equally  beyond  the  possibility  of  question  that 
the  Amendment  in  express  terms  restricts  the  power  of  the 
United  States  or  the  States  to  abridge  or  deny  the  right  of  a 
citizen  of  the  United  States  to  vote  on  account  of  race,  color  or 
previous  condition  of  servitude.     The  restriction  is  coincident 
with  the  power  and  prevents  its  exertion  in  disregard  of  the 
command  of  the  Amendment.    But  while  this  is  true,  it  is  true 
also  that  the  Amendment  does  not  change,  modify  or  deprive  the 
States  of  their  full  power  as  to  suffrage  except  of  course  as  to 
the  subject  with  which  the  Amendment  deals,  and  to  the  extent 
that  obedience  to  its  command  is  necessary.    Thus  the  authority 
over  suffrage  which  the  States  possess  and  the  limitation  which 
the  Amendment  imposes  are  coordinate  and  one  may  not  destroy 
the  other  without  bringing  about  the  destruction  of  both. 

(c)  While  in  the  true  sense,  therefore,  the  Amendment  gives 
no  right  of  suffrage,  it  was  long  ago  recognized  that  in  operation 
its  prohibition  might  measurably  have  that  effect ;  that  is  to  say, 
that  as  the  command  of  the  Amendment  was  self-executing  and 
reached  without  legislative  action  the  conditions  of  discrimina- 
tion against  which  it  was  aimed,  the  result  might  arise  that  as  a 


GUINN  AND  DEAL  v.  UNITED  STATES.          123 

consequence  of  the  striking  down  of  a  discriminating  clause  a 
r  i^rht  of  suffrage  would  be  enjoyed  by  reason  of  the  generic  char- 
acter of  the  provision  which  would  remain  after  the  discrimina- 
tion was  stricken  out.  Ex  parte  Yarbrough,  110  U.  S.  651 ;  Neal 
v.  Delaware,  103  U.  S.  370.  A  familiar  illustration  of  this  doc- 
trine resulted  from  the  effect  of  the  adoption  of  the  Amendment 
on  state  constitutions  in  which  at  the  time  of  the  adoption  of  the 
Amendment  the  right  of  suffrage  was  conferred  on  all  white  male 
citizens,  since  by  the  inherent  power  of  the  Amendment  the  word 
white  disappeared  and  therefor  all  male  citizens  without  discrimi- 
nation on  account  of  race,  color  or  previous  condition  of  servitude 
came  under  the  generic  grant  of  suffrage  made  by  the  State. 

With  these  principles  before  us  how  can  there  be  room  for  any 
serious  dispute  concerning  the  repugnancy  of  the  standard  based 
upon  January  1,  1866  (a  date  which  preceded  the  adoption  of 
the  Fifteenth  Amendment),  if  the  suffrage  provision  fixing  that 
standard  is  susceptible  of  the  significance  which  the  Government 
attributes  to  it?  Indeed,  there  seems  no  escape  from  the  con- 
clusion that  to  hold  that  there  was  even  possibility  for  dispute 
on  the  subject  would  be  but  to  declare  that  the  Fifteenth  Amend- 
ment not  only  had  not  the  self-executing  power  which  it  has 
been  recognized  to  have  from  the  beginning,  but  that  its  pro- 
visions were  wholly  inoperative  because  susceptible  of  being  ren- 
dered inapplicable  by  mere  form  of  expression  embodying  no 
exercise  of  judgment  and  resting  upon  no  discernible  reason 
other  than  the  purpose  to  disregard  the  prohibitions  of  the 
Amendment  by  creating  a  standard  of  voting  which  on  its  face 
was  in  substance  but  a  revitalization  of  conditions  which  when 
they  prevailed  in  the  past  had  been  destroyed  by  the  self-opera- 
tive force  of  the  Amendment. 

2.  The  standard  of  Jnnmiry  1,  1866,  fixed  in  the  suffrage 
amendment  and  its  significance. 

The  inquiry  of  course  here  is,  Does  the  amendment  as  to  the 
particular  standard  which  this  heading  embraces  involve  the 
mere  refusal  to  comply  with  the  commands  of  the  Fifteenth 
Amendment  as  previously  stated  f  This  leads  us  for  the  purpose 
of  the  analysis  to  recur  to  the  text  of  the  suffrage  amendment 
Its  opening  sentence  fixes  the  literacy  standard  which  is  all  in- 
clusive since  it  is  general  in  its  expression  and  contains  no  word 
of  discrimination  on  account  of  race  or  color  or  any  other  reason. 
This,  however,  is  immediately  followed  by  the  provisions  creating 
the  standard  based  upon  the  condition  existing  on  January  1, 
1866,  and  carving  out  those  coming  under  that  standard  from  the 


124  CASES  ON  CONSTITUTIONAL  LAW. 

inclusion  in  the  literacy  test  which  would  have  controlled  them 
but  for  the  exclusion  thus  expressly  provided  for.  The  provision 
is  this : 

"But  no  person  who  was,  on  January  1,  1866,  or  at  any  time 
prior  thereto,  entitled  to  vote  under  any  form  of  government,  or 
who  at  that  time  resided  in  some  foreign  nation,  and  no  lineal 
descendant  of  such  person,  shall  be  denied  the  right  to  register 
and  vote  because  of  his  inability  to  so  read  and  write  sections  of 
such  constitution. ' ' 

We  have  difficulty  in  finding  words  to  more  clearly  demon- 
strate the  conviction  we  entertain  that  this  standard  has  the 
characteristics  which  the  Government  attributes  to  it  than  does 
the  mere  statement  of  the  text.  It  is  true  it  contains  no  express 
words  of  an  exclusion  from  the  standard  which  it  establishes  of 
any  person  on  account  of  race,  color,  or  previous  condition  of 
servitude  prohibited  by  the  Fifteenth  Amendment,  but  the  stand- 
ard itself  inherently  brings  that  result  into  existence  since  it  is 
based  purely  upon  a  period  of  time  before  the  enactment  of  the 
Fifteenth  Amendment  and  makes  that  period  the  controlling  and 
dominant  test  of  the  right  of  suffrage.  In  other  words,  we  seek 
in  vain  for  any  ground  which  would  sustain  any  other  interpre- 
tation but  that  the  provision,  recurring  to  the  conditions  exist- 
ing before  the  Fifteenth  Amendment  was  adopted  and  the  con- 
tinuance of  which  the  Fifteenth  Amendment  prohibited,  pro- 
posed by  in  substance  and  effect  lifting  those  conditions  over  to 
a  period  of  time  after  the  Amendment  to  make  them  the  basis  of 
the  right  to  suffrage  conferred  in  direct  and  positive  disregard  of 
the  Fifteenth  Amendment.  And  the  same  result,  we  are  of 
opinion,  is  demonstrated  by  considering  whether  it  is  possible  to 
discover  any  basis  of  reason  for  the  standard  thus  fixed  other 
than  the  purpose  above  stated.  We  say  this  because  we  are 
unable  to  discover  how,  unless  the  prohibitions  of  the  Fifteenth 
Amendment  were  considered,  the  slightest  reason  was  afforded 
for  basing  the  classification  upon  a  period  of  time  prior  to  the 
Fifteenth  Amendment.  Certainly  it  cannot  be  said  that  there 
was  any  peculiar  necromancy  in  the  time  named  which  engen- 
dered attributes  affecting  the  qualification  to  vote  which  would 
not  exist  at  another  and  different  period  unless  the  Fifteenth 
Amendment  was  in  view. 

While  these  considerations  establish  that  the  standard  fixed 
on  the  basis  of  the  1866  test  is  void,  they  do  not  enable  us  to 
reply  even  to  the  first  question  asked  by  the  court  below,  since 
to  do  so  we  must  consider  the  literacy  standard  established  by 


GUINN  AND  DEAL  v.  UNITED  STATES.          rr> 

the  suffrage  amendment  and  the  possibility  of  its  surviving  the 
determination  of  the  fact  that  the  1866  standard  never  took  life 
since  it  was  void  from  the  beginning  because  of  the  operation 
upon  it  of  the  prohibitions  of  the  Fifteenth  Amendment  And 
this  brings  us  to  the  last  heading: 

3.  The  determination  of  the  validity  of  the  literacy  test  and 
the  possibility  of  its  surviving  the  disappearance  of  the  1866 
standard  with  which  it  is  associated  in  the  suffrage  amendment. 

We  are  of  opinion  that  neither  forms  of  classification  nor  meth- 
ods of  enumeration  should  be  made  the  basis  of  striking  down  a 
provision  which  was  independently  legal  and  therefore  was  law- 
fully enacted  because  of  the  removal  of  an  illegal  provision  with 
which  the  legal  provision  or  provisions  may  have  been  associated. 
We  state  what  we  hold  to  be  the  rule  thus  strongly  because  we  are 
of  opinion  that  on  a  subject  like  the  one  under  consideration 
involving  the  establishment  of  a  right  whose  exercise  lies  at  the 
very  basis  of  government  a  much  more  exacting  standard  is 
required  than  would  ordinarily  obtain  where  the  influence  of  the 
declared  unconstitutionality  of  one  provision  of  a  statute  upon 
another  and  constitutional  provision  is  required  to  be  fixed. 
.  .  .  In  our  opinion  the  very  language  of  the  suffrage  amend- 
ment expresses,  not  by  implication  nor  by  forms  of  classification 
nor  by  the  order  in  which  they  are  made,  but  by  direct  and  posi- 
tive language  the  command  that  the  persons  embraced  in  the  1866 
standard  should  not  be  under  any  conditions  subjected  to  the 
literacy  test,  a  command  which  would  be  virtually  set  at  naught 
if  on  the  obliteration  of  the  one  standard  by  the  force  of  the 
Fifteenth  Amendment  the  other  standard  should  be  held  to  con- 
tinue in  force.  .  .  . 

We  answer  the  first  question,  No,  and  the  second  question,  Yea. 

And  it  will  be  so  certified. 


CHAPTER  III. 

THE  JURISDICTION  OF  THE  FEDERAL  COURTS. 

The  judicial  power  shall  extend  to  all  cases,  in  law  and  equity, 
arising  under  this  Constitution,  the  laws  of  the  United  States,  and 
treaties  made,  or  which  shall  be  made,  under  their  authority;  to  all 
cases  affecting  ambassadors,  other  public  ministers,  and  consuls; 
to  all  cases  of  admiralty  and  maritime  jurisdiction;  to  controversies 
to  which  the  United  States  shall  be  a  party;  to  controversies  be- 
tween two  or  more  States;  between  a  State  and  citizens  of  another 
State;  between  citizens  of  different  States;  between  citizens  of  the 
same  State  claiming  lands  under  grants  of  different  States,  and 
between  a  State,  or  the  citizens  thereof,  and  foreign  States,  citizens, 
or  subjects. 

In  all  cases  affecting  ambassadors,  other  public  ministers  and 
consuls,  and  those  in  which  a  State  shall  be  a  party,  the  Supreme 
Court  shall  have  original  jurisdiction.  In  all  the  other  cases  before 
mentioned  the  Supreme  Court  shall  have  appellate  jurisdiction, 
both  as  to  law  and  fact,  with  such  exceptions  and  under  such  regu- 
lations as  the  Congress  shall  make. 

Constitution  of  the  United  States,  Art.  Ill,  §  #. 

The  judicial  power  of  the  United  States  shall  not  be  construed 
to  extend  to  any  suit  in  law  or  equity,  commenced  or  prosecuted 
against  one  of  the  United  States  by  citizens  of  another  State,  or 
by  citizens  or  subjects  of  any  foreign  State. 

Constitution  of  the  United  States,  Amendment  XI. 

CHISHOLM,  EXECUTOR  v.  GEORGIA. 

SUPREME  COURT  OF  THE  UNITED  STATES.    1793. 
2  Dallas,  419;  1  Lawyers'  Ed.  440. 

[This  was  an  action  of  assumpsit  against  the  State  of  Georgia, 
which  made  a  written  protest  against  the  court 's  taking  jurisdic- 
tion of  the  cause,  but  otherwise  took  no  part  in  the  argument. 
The  judges  delivered  their  opinions  seriatim.  Only  that  of  the 
Chief  Justice  is  here  printed.] 

JAY,  C.  J.  .  .  .  Let  us  now  proceed  to  inquire  whether 
Georgia  has  not,  by  being  a  party  to  the  national  compact,  con- 
sented to  be  suable  by  individual  citizens  of  another  State.  This 
inquiry  naturally  leads  our  attention,  1st.  To  the  design  of  the 
constitution.  2d.  To  the  letter  and  express  declaration  in  it. 

126 


CHISHOLM  v.  GEORGIA.  12? 

Prior  to  the  date  of  the  constitution,  the  people  had  not  any 
national  tribunal  to  which  they  could  resort  for  justice ;  the  dis- 
tribution of  justice  was  then  confined  to  State  judicatories,  in 
whose  institution  and  organization  the  people  of  the  other  States 
had  no  participation,  and  over  whom  they  had  not  the  least  con- 
trol. There  was  then  no  general  court  of  appellate  jurisdiction 
by  whom  the  errors  of  State  courts,  affecting  either  the  nation 
at  large  or  the  citizens  of  any  other  State,  could  be  revised  and 
corrected.  Each  State  was  obliged  to  acquiesce  in  the  measure 
of  justice  which  another  State  might  yield  to  her  or  to  her  citi- 
zens ;  and  that  even  in  cases  where  State  considerations  were  not 
always  favorable  to  the  most  exact  measure.  There  was  danger 
that  from  this  source  animosities  would  in  time  result;  and 
as  the  transition  from  animosities  to  hostilities  was  frequent  in 
the  history  of  independent  States,  a  common  tribunal  for  the 
termination  of  controversies  became  desirable,  from  motives  both 
of  justice  and  of  policy. 

Prior  also  to  that  period  the  United  States  had,  by  taking  a 
place  among  the  nations  of  the  earth,  become  amenable  to  the 
laws  of  nations,  and  it  was  their  interest  as  well  as  their  duty 
to  provide  that  those  laws  should  be  respected  and  obeyed;  in 
their  national  character  and  capacity  the  United  States  were  re- 
sponsible to  foreign  nations  for  the  conduct  of  each  State,  rela- 
tive to  the  laws  of  nations,  and  the  performance  of  treaties ;  and 
there  the  inexpediency  of  referring  all  such  questions  to  State 
courts,  and  particularly  to  the  courts  of  delinquent  States,  be- 
came apparent.  While  all  the  States  were  bound  to  protect  each 
and  the  citizens  of  each,  it  was  highly  proper  and  reasonable 
that  they  should  be  in  a  capacity  not  only  to  cause  justice  to  be 
done  to  each,  and  the  citizens  of  each,  but  also  to  cause  justice 
to  be  done  by  each,  and  the  citizens  of  each,  and  that,  not  by 
violence  and  force,  but  in  a  stable,  sedate,  and  regular  course  of 
judicial  procedure. 

These  were  among  the  evils  against  which  it  was  proper  for 
the  nation,  that  is,  the  people  of  all  the  United  States,  to  provide 
by  a  national  judiciary,  to  be  instituted  by  the  whole  nation, 
and  to  be  responsible  to  the  whole  nation. 

Let  us  now  turn  to  the  constitution.  The  people  therein  de- 
clare that  their  design  in  establishing  it  comprehepded  six  ob- 
jects'. 1st.  To  form  a  more  perfect  union.  2d.  To  establish  jus- 
tice. 3d.  To  insure  domestic  tranquillity.  4th.  To  provide  for 
the  common  defense.  5th.  To  promote  the  general  welfare.  6th. 


128  CASES  ON  CONSTITUTIONAL  LAW. 

To  secure  the  blessings  of  liberty  to  themselves  and  their  poster- 
ity.    ... 

It  may  be  asked,  what  is  the  precise  sense  and  latitude  in  which 
the  words  "to  establish  justice,"  as  here  used,  are  to  be  under- 
stood? The  answer  to  this  question  will  result  from  the  provi- 
sions made  in  the  constitution  on  this  head.  They  are  specified 
in  the  second  section  of  the  third  article,  where  it  is  ordained 
that  the  judicial  power  of  the  United  States  shall  extend  to  ten 
descriptions  of  cases,  namely :  1st.  To  all  cases  arising  under  this 
constitution;  because  the  meaning,  construction,  and  operation 
of  a  compact  ought  always  to  be  ascertained  by  all  the  parties, 
or  by  authority  derived  only  from  one  of  them.  2d.  To  all  cases 
arising  under  the  laws  of  the  United  States ;  because  as  such  laws, 
constitutionally  made,  are  obligatory  on  each  State,  the  measure 
of  obligation  and  obedience  ought  not  to  be  decided  and  fixed 
by  the  party  from  whom  they  are  due,  but  by  a  tribunal  deriv- 
ing authority  from  both  the  parties.  3d.  To  all  cases  arising  under 
treaties  made  by  their  authority;  because,  as  treaties  are  com- 
pacts made  by,  and  obligatory  on  the  whole  nation,  their  opera- 
tion ought  not  to  be  affected  or  regulated  by  the  local  laws  or 
courts  of  a  part  of  the  nation.  4th.  To  all  cases  affecting  am- 
bassadors, or  other  public  ministers  and  consuls ;  because,  as  these 
are  officers  of  foreign  nations,  whom  this  nation  is  bound  to 
protect  and  treat  according  to  the  laws  of  nations,  cases  affecting 
them  ought  only  to  be  cognizable  by  national  authority.  5th.  To 
all  cases  of  admiralty  and  maritime  jurisdiction ;  because,  as  the 
seas  are  the  joint  property  of  nations,  whose  right  and  privileges 
relative  thereto  are  regulated  by  the  laws  of  nations  and  treaties, 
such  cases  necessarily  belong  to  national  jurisdiction.  6th.  To 
controversies  to  which  the  United  States  shall  be  a  party;  be- 
cause, in  cases  in  which  the  whole  people  are  interested  it  would 
not  be  equal  or  wise  to  let  any  one  State  decide  and  measure 
out  the  justice  due  to  others.  7th.  To  controversies  between  two 
or  more  States;  because  domestic  tranquillity  requires  that  the 
contentions  of  States  should  be  peaceably  terminated  by  a  com- 
mon judicatory;  and,  because,  in  a  free  country,  justice  ought 
not  to  depend  on  the  will  of  either  of  the  litigants.  8th.  To  con- 
troversies between  a  State  and  citizens  of  another  State ;  because, 
in  case  a  State  (that  is,  all  the  citizens  of  it)  has  demands  against 
some  citizens  of  another  State,  it  is  better  that  she  should  prose- 
cute their  demands  in  a  national  court,  than  in  a  court  of  the 
State  to  which  those  citizens  belong ;  the  danger  of  irritation  and 
criminations  arising  from  apprehensions  and  suspicions  of  par- 


CHISHOLM  v.  GEORGIA.  129 

tiality  being  thereby  obviated ;  because,  in  cases  where  some  citi- 
zens of  one  State  have  demands  against  all  the  citizens  of  an- 
other State,  the  cause  of  liberty  and  the  rights  of  men  forbid 
that  the  latter  should  be  the  sole  judges  of  the  justice  due  to  the 
latter;  and  true  republican  government  requires  that  free  and 
equal  citizens  should  have  free,  fair,  and  equal  justice.  9th.  To 
controversies  between  citizens  of  the  same  State,  claiming  lands 
under  grants  of  different  States;  because,  as  the  rights  of  the 
two  States  to  grant  the  land  are  drawn  into  question,  neither 
of  the  two  States  ought  to  decide  the  question.  10th.  To  contro- 
versies between  a  State  or  the  citizens  thereof  and  foreign  States, 
citizens  or  subjects;  because,  as  every  nation  is  responsible  for 
the  conduct  of  its  citizens  towards  other  nations,  all  questions 
touching  the  justice  due  to  foreign  nations,  or  people,  ought  to 
be  ascertained  by,  and  depend  on,  national  authority.  Even  this 
cursory  view  of  the  judicial  powers  of  the  United  States  leaves 
the  mind  strongly  impressed  with  the  importance  of  them  to  the 
preservation  of  the  tranquillity,  the  equal  sovereignty,  and  the 
equal  right  of  the  people. 

The  question  now  before  us  renders  it  necessary  to  pay  par- 
ticular attention  to  that  part  of  the  second  section  which  ex- 
tends the  judicial  power  "to  controversies  between  a  State  and 
citizens  of  another  State."  It  is  contended  that  this  ought  to  be 
construed  to  reach  none  of  these  controversies,  excepting  those 
in  which  a  State  may  be  plaintiff.  The  ordinary  rules  for  con- 
st ru«-t  ion  will  easily  decide  whether  those  words  are  to  be  under- 
stood in  that  limited  sense. 

This  extension  of  power  is  remedial,  because  it  is  to  settle  con- 
troversies. It  is,  therefore,  to  be  construed  liberally.  It  is  poli- 
tic, wise,  and  good,  that  not  only  the  controversies  in  which  a 
State  is  plaintiff,  but  also  those  in  which  a  State  is  defendant, 
should  be  settled ;  both  cases,  therefore,  are  within  the  reason  of 
the  remedy;  and  ought  to  be  so  adjudged,  unless  the  obvious, 
plain,  and  literal  sense  of  the  words  forbid  it.  If  we  attend  to 
the  words,  we  find  them  to  be  express,  positive,  free  from  ambigu- 
ity, and  without  room  for  such  implied  expressions:  "The  judi- 
cial power  of  the  United  States  shall  extend  to  controversies  be- 
tween  a  State  and  citizens  of  another  State."  If  the  constitu- 
tion really  meant  to  extend  these  powers  only  to  those  contro- 
versies in  which  a  State  might  be  plaintiff,  to  the  exclusion  of 
those  in  which  citizens  had  demands  against  a  State,  it  is  incon- 
ceivable that  it  should  have  attempted  to  convey  that  meaning 
in  words  not  only  so  incompetent,  but  also  repugnant  to  it;  if  it 

K.C.  L.-9 


130  CASES  ON  CONSTITUTIONAL  LAW. 

meant  to  exclude  a  certain  class  of  these  controversies,  why  were 
they  not  expressly  excepted;  on  the  contrary,  not  even  an  inti- 
mation of  such  intention  appears  in  any  part  of  the  constitution. 
It  cannot  be  pretended  that  where  citizens  urge  and  insist  upon 
demands  against  a  State,  which  the  State  refuses  to  admit  and 
comply  with,  that  there  is  no  controversy  between  them.  If  it 
is  a  controversy  between  them,  then  it  clearly  falls  not  only 
within  the  spirit,  but  the  very  words  of  the  constitution.  What 
is  it  to  the  cause  of  justice,  and  how  can  it  affect  the  definition 
of  the  word  controversy,  whether  the  demands  which  cause  the 
dispute  are  made  by  a  State  against  citizens  of  another  State, 
or  by  the  latter  against  the  former?  When  power  is  thus  ex- 
tended to  a  controversy,  it  necessarily,  as  to  all  judicial  pur- 
poses, is  also  extended  to  those  between  whom  it  subsists.  .  .  . 

We  find  the  same  general  and  comprehensive  manner  of  ex- 
pressing the  same  ideas  in  a  subsequent  clause,  in  which  the  con- 
stitution ordains  that  "in  all  cases  affecting  ambassadors,  other 
public  ministers  and  consuls,  and  those  in  which  a  State  shall  be 
a  party,  the  supreme  court  shall  have  original  jurisdiction." 
Did  it  mean  here  party  plaintiff?  If  that  only  was  meant,  it 
would  have  been  easy  to  have  found  words  to  express  it.  Words 
are  to  be  understood  in  their  ordinary  and  common  acceptation, 
and  the  word  party  being  in  common  usage  applicable  both  to 
plaintiff  and  defendant,  we  cannot  limit  it  to  one  of  them  in  the 
present  case.  We  find  the  legislature  of  the  United  States  ex- 
pressing themselves  in  the  like  general  and  comprehensive  man- 
ner; they  speak,  in  the  thirteenth  section  of  the  judicial  act,  of 
controversies  where  a  State  is  a  party,  and  as  they  do  not  im- 
pliedly  or  expressly  apply  that  term  to  either  of  the  litigants 
in  particular,  we  are  to  understand  them  as  speaking  of  both. 
In  the  same  section  they  distinguish  the  cases  where  ambassa- 
dors are  plaintiffs,  from  those  in  which  ambassadors  are  defend- 
ants, and  make  different  provisions  respecting  those  cases;  and 
it  is  not  unnatural  to  suppose  that  they  would,  in  like  manner, 
have  distinguished  between  cases  where  a  State  was  plaintiff 
and  where  a  State  was  defendant,  if  they  had  intended  to  make 
any  difference  between  them,  or  if  they  had  apprehended  that 
the  constitution  had  made  any  difference  between  them. 

I  perceive,  and  therefore  candor  urges  me  to  mention,  a  cir- 
cumstance, which  seems  to  favor  the  opposite  side  of  the  ques- 
tion. It  is  this :  The  same  section  of  the  constitution  which  ex- 
tends the  judicial  power  to  controversies  "between  a  State  and 
the  citizens  of  another  State, ' '  does  not  extend  that  power  to  con- 


CHISHOLM  v.  GEORGIA.  131 

trovereies  to  which  the  United  States  are  a  party.  Now  it  may  be 
said,  if  the  word  party  comprehends  both  plaintiff  and  defend- 
ant, it  follows  that  the  United  States  may  be  sued  by  any  citi- 
zen, between  whom  and  them  there  may  be  a  controversy.  This 
appears  to  me  to  be  fair  reasoning;  bat  the  same  principles  of 
candor  which  urge  me  to  mention  this  objection,  also  urge  me 
to  suggest  an  important  difference  between  the  two  cases.  It  is 
this:  In  all  cases  of  actions  against  States  or  individual  citizens 
the  national  courts  are  supported  in  all  their  legal  and  consti- 
tutional proceedings  and  judgments  by  the  arm  of  the  executive 
power  of  the  United  States;  but  in  cases  of  actions  against  the 
United  States,  there  is  no  power  which  the  courts  can  call  to  their 
aid.  From  this  distinction  important  conclusions  are  deducible, 
and  they  place  the  case  of  a  State,  and  the  case  of  the  United 
States,  in  very  different  points  of  view.  .  .  . 

For  the  reasons  before  given,  I  am  clearly  of  opinion  that  a 
State  is  suable  by  citizens  of  another  State;  but  lest  I  should 
be  understood  in  a  latitude  beyond  my  meaning,  I  think  it  neces- 
sary to  subjoin  this  caution,  namely,  That  such  suability  may 
nevertheless  not  extend  to  all  the  demands,  and  to  every  kind 
of  action ;  there  may  be  exceptions.  For  instance,  I  am  far  from 
being  prepared  to  say  that  an  individual  may  sue  a  State  on  hills 
of  credit  issued  before  the  constitution  was  established,  and  which 
were  issued  and  received  on  the  faith  of  the  State,  and  at  a  time 
when  no  ideas  or, expectations  of  judicial  interposition  were 
entertained  or  contemplated.  .  .  . 

[MB.  JUSTICE  WILSON,  MB.  JUSTICE  GUSHING  and  MB.  JUSTICE 
BLAIB  delivered  concurring  opinions.  MB.  JUSTICE  IBEDELL  de- 
livered a  dissenting  opinion.] 

NOTE. — While  the  Constitution  was  pending  before  the  States,  Hamilton 
(The  Federalist,  No.  81),  Marshall  (Elliot's  Debate*,  III,  555),  and  Madi- 
son (/*>.,  Ill,  522),  had  expressed  the  opinion  that  the  Federal  courts  were 
given  no  jurisdiction  of  a  suit  by  an  individual  against  a  State.  The  feeling 
aroused  in  Georgia  bj  the  decision  in  the  principal  case  was  most  bitter,  as 
was  evidenced  by  a  bill  passed  by  the  Georgia  House  but  not  adopted  by  the 
Senate  which  provided  that  any  Federal  marshal  attempting  to  carry  the 
judgment  of  the  Supreme  Court  into  execution  "shall  be  guilty  of  felony, 
and  shall  suffer  death,  without  benefit  of  clergy,  by  being  hanged." 
Phillips,  "Georgia  and  State  Bights,"  Annual  Beport  of  the  American  Hit- 
torical  Auociatiot*  for  1901,  II,  27.  Many  of  the  States  shared  Georgia's 
feeling,  but  expressed  themselves  more  temperately.  Two  days  after  the 
decision  was  announced,  the  Eleventh  Amendment  was  proposed  in  Congress. 
Since  its  adoption  every  State  is  exempt  from  suit  in  the  Federal  courts  by 
an  individual,  whether  the  suit  be  brought  against  the  State  eo  nomine  or 


132  CASES  ON  CONSTITUTIONAL  LAW. 

against  an  officer  of  the  State  standing  in  such  a  relation  to  the  controversy 
that  the  suit  is  in  reality  against  the  State.  An  officer  acting  under  color 
of  an  invalid  law  is  personally  liable  for  his  act*  and  a  suit  against  him  is 
not  a  suit  against  the  State.  Poindexter  v.  Greenhow  (1884),  114  U.  S.  270; 
Keagan  v.  Farmers'  Loan  &  Trust  Co.  (1894),  154  U.  S.  362;  Tindal  v.  Wesley 
(1897),  167  U.  S.  204;  Smyth  v.  Ames  (1898),  169  U.  S.  466;  Ex  parte 
Young  (1908),  209  U.  S.  123.  Good  recent  discussions  of  the  exemption  of 
the  States  from  suit  are  Hopkins  v.  Clemson  Agricultural  College  (1911), 
221  U.  S.  636,  and  Lankford  v.  Platte  Iron  Works  (1915),  235  U.  S.  461. 
For  an  important  interpretation  of  the  Eleventh  Amendment,  see  Cohens  v. 
Virginia  (1821),  6  Wheaton,  264,  and  Osborn  v.  Bank  of  the  United  States 
(1824),  9  Wheaton,  738.  For  a  criticism  of  the  principal  case  see  Hans  v. 
Louisiana  (1890),  134  U.  S.  1,  and  for  an  estimate  of  the  political  importance 
of  the  question  involved  see  Chief  Justice  Cooley's  lecture  in  Constitutional 
History  as  Seen  in  American  Law,  48. 


COHENS  v.  THE  STATE  OF  VIRGINIA. 

SUPREME  COURT  OF  THE  UNITED  STATES.     1821. 
6  Wheaton,  264;  5  Lawyers'  Ed.  257. 

MARSHALL,  C.  J.,  delivered  the  opinion  of  the  court. 

This  is  a  writ  of  error  to  a  judgment  rendered  in  the  court  of 
Hustings,  for  the  borough  of  Norfolk,  on  an  information  for  sell- 
ing lottery  tickets,  contrary  to  an  act  of  the  legislature  of  Vir- 
ginia. In  the  state  court,  the  defendant  claimed  the  protection 
of  an  act  of  congress.  A  case  was  agreed  between  the  parties, 
which  states  the  act  of  assembly  on  which  the  prosecution  was 
founded,  and  the  act  of  congress  on  which  the  defendant  relied, 
and  concludes  in  these  words :  "If  upon  this  case  the  court  shall 
be  of  opinion  that  the  acts  of  congress  before  mentioned  were 
valid,  and,  on  the  true  construction  of  those  acts,  the  lottery  tick- 
ets sold  by  the  defendants  as  aforesaid,  might  lawfully  be  sold 
within  the  State  of  Virginia,  notwithstanding  the  act  or  statute 
of  the  general  assembly  of  Virginia  prohibiting  such  sale,  then 
judgment  to  be  entered  for  the  defendants.  And  if  the  court 
should  be  of  opinion  that  the  statute  or  act  of  the  general  assem- 
bly of  the  State  of  Virginia,  prohibiting  such  sale,  is  valid,  not- 
withstanding the  said  acts  of  congress,  then  judgment  to  be 
entered  that  the  defendants  are  guilty,  and  that  the  common- 
wealth recover  against  them  one  hundred  dollars  and  costs." 

Judgment  was  rendered  against  the  defendants ;  and  the  court 
in  which  it  was  rendered  being  the  highest  court  of  the  State  in 
which  the  cause  was  cognizable,  the  record  has  been  brought  into 
this  court  by  writ  of  error. 


COHENS  v.  STATE  OF  VIRGINIA.  133 

The  defendant  in  error  moves  to  dismiss  this  writ,  for  want 
of  jurisdiction. 

In  support  of  this  motion,  three  points  have  been  made,  and 
argued  with  the  ability  which  the  importance  of  the  question 
merits.  These  points  are : — 

1.  That  a  State  is  a  defendant. 

2.  That  no  writ  of  error  lies  from  this  court  to  a  state  court 

3.  The  third  point  has  been  presented  in  different  forms  by 
the  gentlemen  who  have  argued  it.    The  counsel  who  opened  the 
cause  said  that  the  want  of  jurisdiction  was  shown  by  the  sub- 
ject-matter of  the  case.    The  counsel  who  followed  him  said  that 
jurisdiction  was  not  given  by  the  Judiciary  Act.    The  court  has 
bestowed  all  its  attention  on  the  arguments  of  both  gentlemen, 
and  supposes  that  their  tendency  is  to  show  that  this  court  has  no 
jurisdiction  of  the  case,  or,  in  other  words,  has  no  right  to  review 
the  judgment  of  the  state  court,  because  neither  the  constitution 
nor  any  law  of  the  United  States  has  been  violated  by  that  judg- 
ment. 

The  questions  presented  to  the  court  by  the  first  two  points 
made  at  the  bar  are  of  great  magnitude,  and  may  be  truly  said 
vitally  to  affect  the  Union.  They  exclude  the  inquiry  whether 
the  constitution  and  laws  of  the  United  States  have  been  vio- 
lated by  the  judgment  which  the  plaintiffs  in  error  seek  to  re- 
view; and  maintain  that,  admitting  such  violation,  it  is  not  in 
the  power  of  the  government  to  apply  a  corrective.  They  main- 
tain that  the  nation  does  not  possess  a  department  capable  of 
restraining  peaceably,  and  by  authority  of  law,  any  attempts 
which  may  be  made,  by  a  part,  against  the  legitimate  powers  of 
the  whole ;  and  that  the  government  is  reduced  to  the  alternative 
of  submitting  to  such  attempts,  or  of  resisting  them  by  force. 
They  maintain  that  the  constitution  of  the  United  States  has  pro- 
vided no  tribunal  for  the  final  construction  of  itself,  or  of  the 
laws  or  treaties  of  the  nation ;  but  that  this  power  may  be  exer- 
cised in  the  last  resort  by  the  courts  of  every  State  in  the  Union. 
That  the  constitution,  laws,  and  treaties,  may  receive  as  many 
constructions  as  there  are  States;  and  that  this  is  not  a  mischief, 
or,  if  a  mischief,  is  irremediable.  These  abstract  propositions  are 
to  be  determined ;  for  he  who  demands  decision  without  permit- 
ting inquiry,  affirms  that  the  decision  he  asks  does  not  depend 
on  inquiry. 

if  such  be  the  constitution,  it  is  the  duty  of  the  court  to  bow 
with  respectful  submission  to  its  provisions.  If  such  be  not  the 
constitution,  it  is  equally  the  duty  of  this  court  to  say  so;  and 


134  CASES  ON  CONSTITUTIONAL  LAW. 

to  perform  that  task  which  the  American  people  have  assigned 
to  the  judicial  department. 

1.  The  first  question  to  be  considered  is,  whether  the  jurisdic- 
tion of  this  court  is  excluded  by  the  character  of  the  parties,  one 
of  them  being  a  State,  and  the  other  a  citizen  of  that  State  ? 

The  2d  section  of  the  third  article  of  the  constitution  de- 
fines the  extent  of  the  judicial  power  of  the  United  States.  Juris- 
diction is  given  to  the  courts  of  the  Union  in  two  classes  of  cases. 
In  the  first,  their  jurisdiction  depends  on  the  character  of  the 
cause,  whoever  may  be  the  parties.  This  class  comprehends  ' '  all 
cases  in  law  and  equity  arising  under  this  constitution,  the  laws 
of  the  United  States,  and  treaties  made,  or  which  shall  be  made, 
under  their  authority."  This  clause  extends  the  jurisdiction  of 
the  court  to  all  the  cases  described,  without  making  in  its  terms 
any  exception  whatever,  and  without  any  regard  to  the  condition 
of  the  party.  If  there  be  any  exception,  it  is  to  be  implied  against 
the  express  words  of  the  article. 

In  the  second  class,  the  jurisdiction  depends  entirely  on  the 
character  of  the  parties.  In  this  are  comprehended  "controver- 
sies between  two  or  more  States,  between  a  State  and  citizens  of 
another  State, "  "  and  between  a  State  and  foreign  states,  citizens, 
or  subjects."  If  these  be  the  parties,  it  is  entirely  unimportant 
what  may  be  the  subject  of  controversy.  Be  it  what  it  may,  these 
parties  have  a  constitutional  right  to  come  into  the  courts  of  the 
Union. 

The  counsel  for  the  defendant  in  error  have  stated  that  the 
cases  which  arise  under  the  constitution  must  grow  out  of  those 
provisions  which  are  capable  of  self-execution ;  examples  of  which 
are  to  be  found  in  the  2d  section  of  the  4th  article,  and  in  the 
10th  section  of  the  first  article. 

A  case  which  arises  under  a  law  of  the  United  States  must, 
we  are  likewise  told,  be  a  right  given  by  some  act  which  becomes 
necessary  to  execute  the  powers  given  in  the  constitution,  of 
which  the  law  of  naturalization  is  mentioned  as  an  example. 

The  use  intended  to  be  made  of  this  expression  of  the  first  part 
of  the  section,  defining  the  extent  of  the  -judicial  power,  is  not 
clearly  understood.  If  the  intention  be  merely  to  distinguish 
cases  arising  under  the  constitution,  from  those  arising  under  a 
law,  for  the  sake  of  precision  in  the  application  of  this  argument, 
these  propositions  will  not  be  controverted.  If  it  be  to  maintain 
that  a  case  arising  under  the  constitution,  or  a  law,  must  be  one 
in  which  a  party  comes  into  court  to  demand  something  con- 
ferred on  him  by  the  constitution  or  a  law,  we  think  the  construe- 


COHENS  v.  STATE  OF  VIRGINIA.  135 

tion  too  narrow.  A  case  in  law  or  equity  consists  of  the  right 
of  the  one  party,  as  well  as  of  the  other,  and  may  truly  be  said 
to  arise  under  the  constitution  or  a  law  of  the  United  States, 
whenever  its  correct  decision  depends  on  the  construction  of 
cither.  Congress  seems  to  have  intended  to  give  its  own  con- 
struction of  this  part  of  the  constitution,  in  the  25th  section  of 
the  Judiciary  Act;  and  we  perceive  no  reason  to  depart  from 
that  construction. 

The  jurisdiction  of  the  court,  then,  being  extended  by  the  let- 
ter of  the  constitution  to  all  cases  arising  under  it,  or  under 
the  laws  of  the  United  States,  it  follows  that  those  who  would 
withdraw  any  case  of  this  description  from  that  jurisdiction, 
must  sustain  the  exemption  they  claim  on  the  spirit  and  true 
meaning  of  the  constitution,  which  spirit  and  true  meaning 
must  be  so  apparent  as  to  overrule  the  words  which  its  framers 
have  employed. 

The  counsel  for  the  defendant  in  error  have  undertaken  to 
do  this ;  and  have  laid  down  the  general  proposition,  that  a  sov- 
ereign independent  State  is  not  suable,  except  by  its  own  con- 
sent. 

This  general  proposition  will  not  be  controverted.  But  its  con- 
sent is  not  requisite  in  each  particular  case.  It  may  be  given  in 
a  general  law.  And  if  a  State  has  surrendered  any  portion  of 
its  sovereignty,  the  question  whether  a  liability  to  suit  be  a  part 
of  this  portion,  depends  on  the  instrument  by  which  the  sur- 
render is  made.  If  upon  a  just  construction  of  that  instrument, 
it  shall  appear  that  the  State  has  submitted  to  be  sued,  then  it 
has  parted  with  this  sovereign  right  of  judging  in  every  case  on 
the  justice  of  its  own  pretensions,  and  has  intrusted  that  power 
to  a  tribunal  in  whose  impartiality  it  confides. 

The  American  States,  as  well  as  the  American  people,  have 
believed  a  close  and  firm  Union  to  be  essential  to  their  liberty 
and  to  their  happiness.  They  have  been  taught  by  experience, 
that  this  Union  cannot  exist  without  a  government  for  the  whole ; 
and  they  have  been  taught  by  the  same  experience  that  this 
government  would  be  a  mere  shadow,  that  must  disappoint  all 
their  hopes,  unless  invested  with  large  portions  of  that  sov- 
ereignty which  belongs  to  independent  States.  Under  the  influ- 
ence of  this  opinion,  and  thus  instructed  by  experience,  the 
American  people,  in  the  conventions  of  their  respective  States, 
adopted  the  present  constitution. 

If  it  could  be  doubted  wh.-ther,  from  its  nature,  it  were  not 
supreme  in  all  cases  where  it  is  empowered  to  act,  that  doubt 


136  CASES  ON  CONSTITUTIONAL  LAW. 

would  be  removed  by  the  declaration  that  "this  constitution, 
and  the  laws  of  the  United  States  which  shall  be  made  in  pursu- 
ance thereof,  and  all  treaties  made,  or  which  shall  be  made,  under 
the  authority  of  the  United  States,  shall  be  the  supreme  law  of 
the  land;  and  the  judges  in  every  State  shall  be  bound  thereby, 
anything  in  the  constitution  or  laws  of  any  State  to  the  con- 
trary notwithstanding. ' ' 

This  is  the  authoritative  language  of  the  American  people; 
and,  if  gentlemen  please,  of  the  American  States.  It  marks 
with  lines  too  strong  to  be  mistaken,  the  characteristic  distinc- 
tion between  the  government  of  the  Union  and  those  of  the 
States.  The  general  government,  though  limited  as  to  its  ob- 
jects, is  supreme  with  respect  to  those  objects.  This  principle 
is  a  part  of  the  constitution;  and  if  there  by  any  who  deny  its 
necessity,  none  can  deny  its  authority. 

To  this  supreme  government  ample  powers  are  confided;  and 
if  it  were  possible  to  doubt  the  great  purposes  for  which  they 
were  so  confided,  the  people  of  the  United  States  have  declared 
that  they  are  given  "in  order  to  form  a  more  perfect  union, 
establish  justioe,  insure  domestic  tranquillity,  provide  for  the 
common  defense,  promote  the  general  welfare,  and  secure  the 
blessings  of  liberty  to  themselves  and  their  posterity." 

With  the  ample  powers  confided  to  this  supreme  government, 
for  these  interesting  purposes,  are  connected  many  express  and 
important  limitations  on  the  sovereignty  of  the  States,  which  are 
made  for  the  same  purposes.  The  powers  of  the  Union  on  the 
great  subjects  of  war,  peace,  and  commerce,  and  on  many  others, 
are  in  themselves  limitations  of  the  sovereignty  of  the  States ;  but 
in  addition  to  these,  the  sovereignty  of  the  States  is  surrendered 
in  many  instances  where  the  surrender  can  only  operate  to  the 
benefit  of  the  people,  and  where,  perhaps,  no  other  power  is  con- 
ferred on  congress  than  a  conservative  power  to  maintain  the 
principles  established  in  the  constitution.  The  maintenance  of 
these  principles  in  their  purity  is  certainly  among  the  great 
duties  of  the  government.  One  of  the  instruments  by  which 
this  duty  may  be  peaceably  performed  is  the  judicial  department. 
It  is  authorized  to  decide  all  cases,  of  every  description,  arising 
under  the  constitution  or  laws  of  the  United  States.  From  this 
general  grant  of  jurisdiction,  no  exception  is  made  of  those  cases 
in  which  a  State  may  be  a  party.  When  we  consider  the  situ- 
ation of  the  government  of  the  Union  and  of  a  State,  in  rela- 
tion to  each  other;  the  nature  of  our  constitution,  the  subordi- 
nation of  the  state  governments  to  the  constitution;  the  great 


COHENS  v.  STATE  OF  VIRGINIA.  137 

purpose  for  which  jurisdiction  over  all  cases  arising  under  the 
constitution  and  laws  of  the  United  States,  is  confided  to  the 
judicial  department,  are  we  at  liberty  to  insert  in  this  general 
grant,  an  exception  of  those  cases  in  which  a  State  may  be  a 
party!  Will  the  spirit  of  the  constitution  justify  this  attempt 
to  control  its  words?  We  think  it  will  not.  We  think  a  case 
arising  under  the  constitution  or  laws  of  the  United  States,  is 
cognizable  in  the  courts  of  the  Union,  whoever  may  be  the  par- 
ties to  that  case.  .  .  . 

It  is  most  true  that  this  court  will  not  take  jurisdiction  if  it 
should  not ;  but  it  is  equally  true,  that  it  must  take  jurisdiction 
if  it  should.  The  judiciary  cannot,  as  the  legislature  may,  avoid 
a  measure  because  it  approaches  the  confines  of  the  constitution. 
We  cannot  pass  it  by  because  it  is  doubtful.  With  whatever 
doubts,  with  whatever  difficulties,  a  case  may  be  attended,  we 
must  decide  it,  if  it  be  brought  before  us.  We  have  no  more 
right  to  decline  the  exercise  of  jurisdiction  which  is  given,  than 
to  usurp  that  which  is  not  given.  The  one  or  the  other  would 
be  treason  to  the  constitution.  Questions  may  occur  which  we 
would  gladly  avoid ;  but  we  cannot  avoid  them.  All  we  can  do 
is,  to  exercise  our  best  judgment,  and  conscientiously  to  perform 
our  duty.  In  doing  this  on  the  present  occasion,  we  find  this 
tribunal  invested  with  appellate  jurisdiction  in  all  cases  arising 
under  the  constitution  and  laws  of  the  United  States.  We  find 
no  exception  to  this  grant,  and  we  cannot  insert  one.  .  .  . 

We  think,  then,  that  as  the  constitution  originally  stood,  the 
appellate  jurisdiction  of  this  court,  in  all  cases  arising  under 
the  constitution,  laws,  or  treaties  of  the  United  States,  was  not 
arrested  by  the  circumstance  that  a  State  was  a  party. 

This  leads  to  a  consideration  of  the  llth  amendment. 

It  is  in  these  words:  "The  judicial  power  of  the  United  States 
shall  not  be  construed  to  extend  to  any  suit  in  law  or  equity 
commenced  or  prosecuted  against  one  of  the  United  States,  by 
citizens  of  another  State,  or  by  citizens  or  subjects  of  any  for- 
eign State." 

It  is  a  part  of  our  history,  that,  at  the  adoption  of  the  con- 
stitution, all  the  States  were  greatly  indebted;  and  the  apprehen- 
sion that  these  debts  might  be  prosecuted  in  the  federal  courts, 
formed  a  very  serious  objection  to  that  instrument  Suits  were 
instituted ;  arid  the  court  maintained  its  jurisdiction.  The  alarm 
was  general ;  and,  to  quiet  the  apprehensions  that  were  so  exten- 
y  entertained,  this  amendment  was  proposed  in  Congress, 
and  adopted  by  the  State  legislatures.  That  its  motive  was  not 


138  CASES  ON  CONSTITUTIONAL  LAW. 

to  maintain  the  sovereignty  of  a  State  from  the  degradation  sup- 
posed to  attend  a  compulsory  appearance  before  the  tribunal  of 
the  nation,  may  be  inferred  from  the  terms  of  the  amendment. 
It  does  not  comprehend  controversies  between  two  or  more  States, 
or  between  a  State  and  a  foreign  state.  The  jurisdiction  of  the 
court  still  extends  to  these  cases;  and  in  these  a  State  may  still 
be  sued.  We  must  ascribe  the  amendment,  then,  to  some  other 
cause  than  the  dignity  of  a  State.  There  is  no  difficulty  in  find- 
ing this  cause.  Those  who  were  inhibited  from  commencing  a 
suit  against  a  State,  or  from  prosecuting  one  which  might  be 
commenced  before  the  adoption  of  the  amendment,  were  persons 
who  might  probably  be  its  creditors.  There  was  not  much  reason 
to  fear  that  foreign  or  sister  States  would  be  creditors  to  any 
considerable  amount,  and  there  was  reason  to  retain  the  juris- 
diction of  the  court  in  those  cases,  because  it  might  be  essential 
to  the  preservation  of  peace.  The  amendment,  therefore,  ex- 
tended to  suits  commenced  or  prosecuted  by  individuals,  but  not 
to  those  brought  by  States. 

The  first  impression  made  on  the  mind  by  this  amendment  is, 
that  it  was  intended  for  those  cases,  and  for  those  only,  in  which 
some  demand  against  a  State  is  made  by  an  individual  in  the 
courts  of  the  Union.  If  we  consider  the  causes  to  which  it  is  to 
be  traced,  we  are  conducted  to  the  same  conclusion.  A  general 
interest  might  well  be  felt  in  leaving  to  a  State  the  full  power  of 
consulting  its  convenience  in  the  adjustment  of  its  debts,  or  of 
other  claims  upon  it ;  but  no  interest  could  be  felt  in  so  chang- 
ing the  relations  between  the  whole  and  its  parts,  as  to  strip  the 
government  of  the  means  of  protecting,  by  the  instrumentality 
of  its  courts,  the  constitution  and  laws  from  active  violation. 

Under  the  Judiciary  Act,  1  Stats,  at  Large,  73,  the  effect  of  a 
writ  of  error  is  simply  to  bring  the  record  into  court,  and  submit 
the  judgment  of  the  inferior  tribunal  to  re-examination.  It  does 
not  in  any  manner  act  upon  the  parties ;  it  acts  only  on  the  record. 
It  removes  the  record  into  the  supervising  tribunal.  Where,  then, 
a  State  obtains  a  judgment  against  an  individual,  and  the  court 
rendering  such  judgment  overrules  a  defense  set  up  under  the 
constitution  or  laws  of  the  United  States,  the  transfer  of  this  rec- 
ord into  the  supreme  court,  for  the  sole  purpose  of  inquiring 
whether  the  judgment  violates  the  constitution  of  the  United 
States,  can,  with  no  propriety,  we  think,  be  denominated  a  suit 
commenced  or  prosecuted  against  the  State  whose  judgment  is  so 
far  re-examined.  Nothing  is  demanded  from  the  State.  No  claim 


COHENS  v.  STATE  OP  V HUM. VIA.  139 

against  it  of  any  description  is  asserted  or  prosecuted.  The  party 
is  not  to  be  restored  to  the  possession  of  anything.  .  .  .  I  It- 
only  asserts  the  constitutional  right  to  have  his  defense  examined 
by  that  tribunal  whose  province  it  is  to  construe  the  constitution 
and  laws  of  the  Union.  .  .  . 

The  point  of  view  in  which  this  writ  of  error,  with  its  citation, 
has  been  considered  uniformly  in  the  courts  of  the  Union,  has 
been  well  illustrated  by  a  reference  to  the  course  of  this  court 
in  suits  instituted  by  the  United  States.  The  universally  re- 
ceived opinion  is,  that  no  suit  can  be  commenced  or  prosit 
against  the  United  States;  that  the  Judiciary  Act  does  not  au- 
thorize such  suits.  Yet  writs  of  error,  accompanied  with  cita- 
tions, have  uniformly  issued  for  the  removal  of  judgments  in 
favor  of  the  United  States  into  a  superior  court,  where  they 
have  like  those  in  favor  of  an  individual,  been  re-examined,  and 
affirmed  or  reversed.  It  has  never  been  suggested  that  such  a 
writ  of  error  was  a  suit  against  the  United  States,  and  therefore 
not  within  the  jurisdiction  of  the  appellate  court. 

It  is,  then,  the  opinion  of  the  court,  that  the  defendant  who 
removes  a  judgment  rendered  against  him  by  a  state  court  into 
this  court,  for  the  purpose  of  re-examining  the  question  whether 
that  judgment  be  a  violation  of  the  constitution  or  laws  of  the 
United  States,  does  not  commence  or  prosecute  a  suit  against  the 
State,  whatever  may  be  its  opinion  where  the  effect  of  the  writ 
may  be  to  restore  the  party  to  the  possession  of  a  thing  which 
he  demands. 

But  should  we  in  this  be  mistaken,  the  error  does  not  affect 
the  case  now  before  the  court.  If  this  writ  of  error  be  a  suit  in 
the  sense  of  the  llth  amendment,  it  is  not  a  suit  commenced  or 
prosecuted  "by  a  citizen  of  another  State,  or  by  a  citizen  or 
subject  of  any  foreign  state."  It  is  not  then  within  the  amend- 
ment, but  is  governed  entirely  by  the  constitution  as  originally 
framed,  and  we  have  already  seen  that,  in  its  origin,  the  judicial 
power  was  extended  to  all  cases  arising  under  the  constitution 
or  laws  of  the  United  States,  without  respect  to  parties.1 

2.  The  second  objection  to  the  jurisdiction  of  the  court  is,  that 
its  appellate  power  cannot  be  exercised,  in  any  caae,  over  the 
judgment  of  a  state  court. 

This  objection  is  sustained  chiefly  by  arguments  drawn  from 
the  supposed  total  separation  of  the  judiciary  of  a  State  from  that 
of  the  Union,  and  their  entire  independence  of  each  other.  The 

i  See  Hans  v.  Louisiana  (1890),  134  U.  8.  1,  20. 


140  CASES  ON  CONSTITUTIONAL  LAW. 

argument  considers  the  federal  judiciary  as  completely  foreign 
to  that  of  a  State;  and  as  being  no  more  connected  with  it,  in 
any  respect  whatever,  than  the  court  of  a  foreign  state.  If  this 
hypothesis  be  just,  the  argument  founded  on  it  is  equally  so; 
but  if  the  hypothesis  be  not  supported  by  the  constitution,  the 
argument  fails  with  it. 

This  hypothesis  is  not  founded  on  any  words  in  the  constitu- 
tion, which  might  seem  to  countenance  it,  but  on  the  unreason- 
ableness of  giving  a  contrary  construction  to  words  which  seem 
to  require  it;  and  on  the  incompatibility  of  the  application  of 
the  appellate  jurisdiction  to  the  judgments  of  state  courts,  with 
that  constitutional  relation  which  subsists  between  the  govern- 
ment of  the  Union  and  the  governments  of  those  States  which 
compose  it. 

Let  this  unreasonableness,  this  total  incompatibility,  be  ex- 
amined. 

That  the  United  States  form,  for  many,  and  for  most  impor- 
tant purposes,  a  single  nation,  has  not  yet  been  denied.  In  war, 
we  are  one  people.  In  making  peace,  we  are  one  people.  In  all 
commercial  regulations,  we  are  one  and  the  same  people.  In  many 
other  respects,  the  American  people  are  one;  and  the  govern- 
ment which  is  alone  capable  of  controlling  and  managing  their 
interests,  in  all  these  respects,  is  the  government  of  the  Union. 
It  is  their  government,  and  in  that  character  they  have  no  other. 
America  has  chosen  to  be,  in  many  respects,  and  to  many  pur- 
poses, a  nation;  and  for  all  these  purposes  her  government  is 
complete ;  to  all  these  objects,  it  is  competent.  The  people  have 
declared,  that  in  the  exercise  of  all  the  powers  given  for  these 
objects,  it  is  supreme.  It  can,  then,  in  effecting  these  objects, 
legitimately  control  all  individuals  or  governments  within  the 
American  territory.  The  constitution  and  laws  of  a  State,  so 
far  as  they  are  repugnant  to  the  constitution  and  laws  of  the 
United  States,  are  absolutely  void.  These  States  are  constitu- 
ent parts  of  the  United  States.  They  are  members  of  one  great 
empire, — for  some  purposes  sovereign,  for  some  purposes  sub- 
ordinate. 

In  a  government  so  constituted,  is  it  unreasonable  that  the 
judicial  power  should  be  competent  to  give  efficacy  to  the  con- 
stitutional laws  of  the  legislature?  That  department  can  de- 
cide on  the  validity  of  the  constitution  or  law  of  a  State,  if  it  be 
repugnant  to  the  constitution  or  to  a  law  of  the  United  States. 
Is  it  unreasonable  that  it  should  also  be  empowered  to  decide 
on  the  judgment  of  a  state  tribunal  enforcing  such  unconstitu- 


COHENS  v.  STATE  OP  VIRGINIA. 

tional  law  ?  Is  it  so  very  unreasonable  as  to  furnish  a  justifica- 
tion for  controlling  the  words  of  the  constitution  f 

We  think  it  is  not.  We  think  that  in  a  government  acknowl- 
edgedly  supreme,  with  respect  to  objects  of  vital  interest  to  the 
nation,  there  is  nothing  inconsistent  with  sound  reason,  nothing 
incompatible  with  the  nature  of  government,  in  making  all  its 
departments  supreme,  so  far  as  respects  those  objects,  and  so 
far  as  is  necessary  to  their  attainment.  The  exercise  of  the 
appellate  power  over  those  judgments  of  the  state  tribunals  which 
may  contravene  the  constitution  or  laws  of  the  United  States, 
is,  we  believe,  essential  to  the  attainment  of  those  objects. 

The  propriety  of  intrusting  the  construction  of  the  constitu- 
tion, and  laws  made  in  pursuance  thereof,  to  the  judiciary  of  the 
Union,  has  not,  we  believe,  as  yet,  been  drawn  into  question.  It 
seems  to  be  a  corollary  from  this  political  axiom,  that  the  federal 
courts  should  either  possess  exclusive  jurisdiction  in  such  cases, 
or  a  power  to  revise  the  judgments  rendered  in  them  by  the 
state  tribunals.  If  the  federal  and  state  courts  have  concur- 
rent jurisdiction  in  all  cases  arising  under  the  constitution,  laws, 
and  treaties  of  the  United  States ;  and  if  a  case  of  this  descrip- 
tion brought  in  a  state  court  cannot  be  removed  before  judg- 
ment, nor  revised  after  judgment,  then  the  construction  of  the 
constitution,  laws,  and  treaties  of  the  United  States  is  not  con- 
fided particularly  to  their  judicial  department,  but  is  confided 
equally  to  that  department  and  to  the  state  courts,  however 
they  may  be  constituted.  "Thirteen  independent  courts,"  says  a 
very  celebrated  statesman  (and  we  have  now  more  than  twenty 
such  courts),  "of  final  jurisdiction  over  the  same  causes,  arising 
upon  the  same  laws,  is  a  hydra  in  government,  from  which  noth- 
ing but  contradiction  and  confusion  can  proceed." 

Dismissing  the  unpleasant  suggestion,  that  any  motives  which 
may  not  be  fairly  avowed,  or  which  ought  not  to  exi^t.  can  ever 
influence  a  State  or  its  courts,  the  necessity  of  uniform^,  as 
well  as  correctness  in  expounding  the  constitution  and  laws  of 
the  United  States,  would  itself  suggest  the  propriety  of  vert- 
ing in  some  single  tribunal  the  power  of  deciding,  in  the  last 
resort,  all  cases  in  which  they  are  involved. 

We  are  not  restrained,  then,  by  the  political  relations  between 
the  general  and  state  governments,  from  construing  the  words  of 
the  constitution,  defining  the  judicial  power,  in  their  true  sense. 
We  are  not  bound  to  construe  them  more  restrictively  than  they 
naturally  import. 

They  give  to  the  supreme  court  appellate  jurisdiction  in  all 


142  CASES  ON  CONSTITUTIONAL  LAW. 

cases  arising  under  the  constitution,  laws,  and  treaties  of  the 
United  States.  The  words  are  broad  enough  to  comprehend  all 
cases  of  this  description,  in  whatever  court  they  may  be  decided. 
.  .  .  Let  the  nature  and  objects  of  our  Union  be  considered ; 
let  the  great  fundamental  principles  on  which  the  fabric  stands 
be  examined ;  and  we  think  the  result  must  be  that  there  is  noth- 
ing so  extravagantly  absurd  in  giving  to  the  court  of  the  nation 
the  power  of  revising  the  decisions  of  local  tribunals,  on  questions 
which  affect  the  nation,  as  to  require  that  words  which  import 
this  power  should  be  restricted  by  a  forced  construction.  .  .  . 

Motion  denied. 
The  cause  was  thereupon  argued  on  the  merits.     .     .     .* 

Judgment  affirmed. 

NOTE. — The  constitutionality  of  the  twenty-fifth  section  of  the  Judiciary 
Act  of  1789  had  been  upheld  by  Justice  Story  in  Martin  v.  Hunter's 
Lessee  (1816),  1  Wheaton,  304. 


THE  CHEROKEE  NATION  v.  THE  STATE  OF  GEORGIA. 

SUPREME  COURT  OF  THE  UNITED  STATES.    1831. 
5  Peters,  1;  8  Lawyers'  Ed.  25. 

This  was  an  original  bill  filed  in  this  court  by  the  Cherokee 
nation  against  the  State  of  Georgia,  and  also  a  supplemental  bill 
by  the  same  complainant  against  the  same  defendant,  upon  which 
the  complainant  moved  for  a  subpo3na  to  the  State,  and  also  for 
a  temporary  injunction  to  restrain  the  State  from  enforcing  the 
laws  of  Georgia  within  the  territory  alleged  to  belong  exclusively 
to  the  complainants.  .  .  . 

The  bill  set  forth  the  complainants  to  be  "  the  Cherokee  nation 
of  Indians,  a  foreign  state,  not  owing  allegiance  to  the  United 
States,  nor  to  any  State  of  this  Union,  nor  to  any  prince,  poten- 
tate, or  state,  other  than  their  own." 

"That  from  time  immemorial,  the  Cherokee  nation  have  com- 
posed a  sovereign  and  independent  state,  and  in  this  character 
have  been  repeatedly  recognized,  and  still  stand  recognized,  by 
the  United  States,  in  the  various  treaties  subsisting  between  their 
nation  and  the  Unated  States."  And  it  proceeds  to  state  when 
these  were  made,  and  their  substance,  and  shows  how  certain  laws 
of  Georgia  are  repugnant  thereto.  .  .  . 

No  counsel  appeared  for  the  State  of  Georgia. 


CHEROKEE  NATION  v.  STATE  OP  GEORGIA.    143 

MARSHALL,  C.  J.,  delivered  the  opinion  of  the  court. 

This  bill  is  brought  by  the  Cherokee  nation,  praying  an  in- 
junction to  restrain  the  State  of  Georgia  from  the  execution  of 
certain  laws  of  that  State,  which,  as  is  alleged,  go  directly  to  anni- 
hilate the  Cherokees  as  a  political  society,  and  to  seize,  for  the 
use  of  Georgia,  the  lands  of  the  nation  which  have  been  assured 
to  them  by  the  United  States  in  solemn  treaties  repeatedly  made 
and  still  in  force.  .  .  . 

Before  we  can  look  into  the  merits  of  the  case,  a  preliminary 
inquiry  presents  itself.  Has  this  court  jurisdiction  of  the  cause  ? 

The  3d  article  of  the  constitution  describes  the  extent  of 
the  judicial  power.  The  2d  section  closes  an  enumeration  of 
the  cases  to  which  it  is  extended,  with  "controversies"  "between 
a  State  or  the  citizens  thereof  and  foreign  states,  citizens,  or  sub- 
jects." A  subsequent  clause  of  the  same  section  gives  the  su- 
preme court  original  jurisdiction  in  all  cases  in  which  a  State 
shall  be  a  party.  The  party  defendant  may,  then,  unquestion- 
ably be  sued  in  this  court.  May  the  plaintiff  sue  in  it?  Is  the 
Cherokee  nation  a  foreign  state  in  the  sense  in  which  that  term 
is  used  in  the  constitution? 

The  counsel  for  the  plaintiffs  have  maintained  the  affirmative 
of  this  proposition  with  great  earnestness  and  ability.  So  much 
of  the  argument  as  was  intended  to  prove  the  character  of  the 
Cherokees  as  a  state,  as  a  distinct  political  society,  separated  from 
others,  capable  of  managing  its  own  affairs  and  governing  itself, 
has,  in  the  opinion  of  a  majority  of  the  judges,  been  completely 
successful.  They  have  been  uniformly  treated  as  a  state  from 
the  settlement  of  our  country.  The  numerous  treaties  made  by 
them  with  the  United  States  recognize  them  as  a  people  capable 
of  maintaining  the  relations  of  peace  and  war,  of  being  responsi- 
ble in  their  political  character  for  any  violation  of  their  engage- 
ments, or  for  any  aggression  committed  on  the  citizens  of  the 
United  States  by  any  individual  of  their  community,  ^tyws 
have  been  enacted  in  the  spirit  of  these  treaties.  The  acts  of  our 
government  plainly  recognize  the  Cherokee  nation  as  a  state, 
and  the  courts  are  bound  by  those  acts. 

A  question  of  much  more  difficulty  remains.  Do  the  Chero- 
kees constitute  a  foreign  state  in  the  sense  of  the  constitution  ? 

The  counsel  have  shown  conclusively  that  they  are  not  a  State 
of  the  Union, .and  have  insisted  that  individually  they  are  aliens, 
not  owing  allegiance  to  the  United  States.  An  aggregate  of  aliens 
composing  a  state  must,  they  say,  be  a  foreign  state.  Each  indi- 
vidual being  foreign,  the  whole  must  be  foreign. 


144  CASES  ON  CONSTITUTIONAL  LAW. 

This  argument  is  imposing,  but  we  must  examine  it  more 
closely  before  we  yield  to  it.  The  condition  of  the  Indians  in 
relation  to  the  United  States  is  perhaps  unlike  that  of  any  other 
two  people  in  existence.  In  the  general,  nations  not  owing  a 
common  allegiance  are  foreign  to  each  other.  The  term  foreign 
nation  is,  with  strict  propriety,  applicable  by  either  to  the  other. 
But  the  relation  of  the  Indians  to  the  United  States  is  marked 
by  peculiar  and  cardinal  distinctions  which  exist  nowhere  else. 

The  Indian  territory  is  admitted  to  form  a  part  of  the  United 
States.  In  all  our  maps,  geographical  treatises,  histories,  and 
laws,  it  is  so  considered.  In  all  our  intercourse  with  foreign  na- 
tions, in  our  commercial  regulations,  in  any  attempt  at  intercourse 
between  Indians  and  foreign  nations,  they  are  considered  as  with- 
in the  jurisdictional  limits  of  the  United  States,  subject  to  many 
of  those  restraints  which  are  imposed  upon  our  own  citizens.  They 
acknowledge  themselves  in  their  treaties  to  be  under  the  protec- 
tion of  the  United  States;  they  admit  that  the  United  States 
shall  have  the  sole  and  exclusive  right  of  regulating  the  trade 
with  them,  and  managing  all  their  aff airs  as  they  think  proper ; 
and  the  Cherokees  in  particular  were  allowed  by  the  treaty  of 
Hopewell,  7  Statutes  at  Large,  18,  which  preceded  the  constitu- 
tion, "to  send  a  deputy  of  their  choice,  whenever  they  think 
proper,  to  congress."  Treaties  were  made  with  some  tribes  by 
the  State  of  New  York,  under  a  then  unsettled  construction  of 
the  confederation,  by  which  they  ceded  all  their  lands  to  that 
State,  taking  back  a  limited  grant  to  themselves,  in  which  they 
admit  their  dependence. 

Though  the  Indians  are  acknowledged  to  have  an  unquestion- 
able, and,  heretofore,  unquestioned  right  to  the  land  they  occupy, 
until  that  right  shall  be  extinguished  by  a  voluntary  cession  to 
our  government;  yet  it  may  be  doubted  whether  those  tribes 
which  reside  within  the  acknowledged  boundaries  of  the  United 
States  can,  with  strict  accuracy,  be  denominated  foreign  nations. 
They  may,  more  correctly,  perhaps,  be  denominated  domestic 
dependent  nations.  They  occupy  a  territory  to  which  we  assert 
a  title  independent  of  their  will,  which  must  take  effect  in  point 
of  possession  when  their  right  of  possession  ceases.  Meanwhile 
they  are  in  a  state  of  pupilage.  Their  relation  to  the  United 
States  resembles  that  of  a  ward  to  his  guardian. 

They  look  to  our  government  for  protection;  rely  upon  its 
kindness  and  its  power ;  appeal  to  it  for  relief  to  their  wants ;  and 
address  the  President  as  their  great  father.  They  and  their 
country  are  considered  by  foreign  nations,  as  well  as  by  our- 


CHEROKEE  NATION  v.  STATE  OF  GEORGIA.    145 

selves,  as  being  so  completely  under  the  sovereignty  of  the  United 
States,  that  any  attempt  to  acquire  their  lands,  or  to  form  a 
political  connection  with  them,  would  be  considered  by  all  as  an 
invasion  of  our  territory,  and  an  act  of  hostility. 

These  considerations  go  far  to  support  the  opinion  that  the 
framers  of  our  constitution  had  not  the  Indian  tribes  in  view, 
when  they  opened  the  courts  of  the  Union  to  controversies  be- 
tween a  State  or  the  citizens  thereof  and  foreign  states. 

In  considering  this  subject,  the  habits  and  usages  of  the  In- 
dians, in  their  intercourse  with  their  white  neighbors,  ought  not 
to  be  entirely  disregarded.  At  the  time  the  constitution  was 
framed,  the  idea  of  appealing  to  an  American  court  of  justice 
for  an  assertion  of  right  or  a  redress  of  wrong,  had,  perhaps, 
never  entered  the  mind  of  an  Indian  or  his  tribe.  Their  appeal 
was  to  the  tomahawk,  or  to  the  government.  This  was  well  un- 
derstood by  the  statesmen  who  framed  the  constitution  of  the 
United  States,  and  might  furnish  some  reason  for  omitting  to 
enumerate  them  among  the  parties  who  might  sue  in  the  courts 
of  the  Union.  Be  this  as  it  may,  the  peculiar  relations  between 
the  United  States  and  the  Indians  occupying  our  territory  are 
such  that  we  should  feel  much  difficulty  in  considering  them  as 
designated  by  the  term  foreign  state,  were  there  no  other  part 
of  the  constitution  which  might  shed  light  on  the  meaning  of 
these  words.  But  we  think  that  in  construing  them,  considerable 
aid  is  furnished  by  that  clause  in  the  8th  section  of  the  1st 
article,  which  empowers  congress  to  "regulate  commerce  with 
foreign  nations,  and  among  the  several  States,  and  with  the  In- 
dian tribes." 

In  this  clause  they  are  as  clearly  contradistinguished  by  a  name 
appropriate  to  themselves,  from  foreign  nations,  as  from  the 
several  States  composing  the  Union.  They  are  designated  by  a 
distinct  appellation;  and  as  this  appellation  can  be  applied  to 
neither  of  the  others,  neither  can  the  appellation  distinguishing 
either  of  the  others  be  in  fair  construction  applied  to  them.  The 
objects,  to  which  the  power  of  regulating  commerce  might  be 
directed,  are  divided  into  three  distinct  classes — foreign  nations, 
the  several  States,  and  Indian  tribes.  When  forming  this  arti- 
cle, the  convention  considered  them  as  entirely  distinct.  We 
cannot  assume  that  the  distinction  was  lost  in  framing  a  subse- 
quent article,  unless  there  be  something  in  its  language  to  au- 
thorize the  assumption. 

The  counsel  for  the  plaintiffs  contend  that  the  words  "Indian 
tribes"  were  introduced  into  the  article  empowering  congress  to 

K.  c.  L.-W 


146  CASES  ON  CONSTITUTIONAL  LAW. 

regulate  commerce,  for  the  purpose  of  removing  those  doubts  in 
which  the  management  of  Indian  affairs  was  involved  by  the  lan- 
guage of  the  9th  article  of  the  confederation.  Intending  to 
give  the  whole  power  of  managing  those  affairs  to  the  govern- 
ment about  to  be  instituted,  the  convention  conferred  it  explicitly, 
and  omitted  those  qualifications  which  embarrassed  the  exercise 
of  it  as  granted  in  the  confederation.  This  may  be  admitted 
without  weakening  the  construction  which  has  been  intimated. 
Had  the  Indian  tribes  been  foreign  nations,  in  the  view  of  the 
convention,  this  exclusive  power  of  regulating  intercourse  with 
them  might  have  been,  and  most  probably  would  have  been,  spe- 
cifically given,  in  language  indicating  that  idea,  not  in  language 
contradistinguishing  them  from  foreign  nations.  Congress  might 
have  been  empowered  ''to  regulate  commerce  with  foreign 
nations,  including  the  Indian  tribes,  and  among  the  several 
States. ' '  This  language  would  have  suggested  itself  to  statesmen 
who  considered  the  Indian  tribes  as  foreign  nations,  and  were 
yet  desirous  of  mentioning  them  particularly. 

It  has  also  been  said  that  the  same  words  have  not  necessarily 
the  same  meaning  attached  to  them  when  found  in  different  parts 
of  the  same  instrument ;  their  meaning  is  controlled  by  the  con- 
text. This  is  undoubtedly  true.  In  common  language,  the  same 
word  has  various  meanings,  and  the  peculiar  sense  in  which  it  is 
used  in  any  sentence  is  to  be  determined  by  the  context.  This 
may  not  be  equally  true  with  respect  to  proper  names.  Foreign 
nations,  is  a  general  term,  the  application  of  which  to  Indian 
tribes,  when  used  in  the  American  constitution,  is  at  best  ex- 
tremely questionable.  In  one  article,  in  which  a  power  is  given  to 
be  exercised  in  regard  to  foreign  nations  generally,  and  to  the 
Indian  tribes  particularly,  they  are  mentioned  as  separate  in 
terms  clearly  contradistinguishing  them  from  each  other.  "We 
perceive  plainly  that  the  constitution,  in  this  article,  does  not 
comprehend  Indian  tribes  in  the  general  term  * '  foreign  nations ; ' ' 
not,  we  presume,  because  a  tribe  may  not  be  a  nation,  but  because 
it  is  not  foreign  to  the  United  States.  When,  afterwards,  the 
term  ''foreign  states"  is  introduced,  we  cannot  impute  to  the 
convention  the  intention  to  desert  its  former  meaning,  and  to 
comprehend  Indian  tribes  within  it,  unless  the  context  force  that 
construction  upon  us.  We  find  nothing  in  the  context,  and  noth- 
ing in  the  subject  of  the  article,  which  leads  to  it. 

The  court  has  bestowed  its  best  attention  on  this  question,  and, 
after  mature  deliberation,  the  majority  is  of  opinion  that  an 
Indian  tribe  or  nation  within  the  United  States  is  not  a  foreign 


CHEROKEE  NATION  v.  STATE  OF  GEORGIA.    147 

state,  in  the  sense  of  the  constitution,  and  cannot  maintain  an 
action  in  the  courts  of  the  United  States. 

A  serious  additional  objection  exists  to  the  jurisdiction  of  the 
court.  Is  the  matter  of  the  bill  the  proper  subject  for  judicial 
inquiry  and  decision?  It  seeks  to  restrain  a  State  from  the 
forcible  exercise  of  legislative  power  over  a  neighboring  people, 
asserting  their  independence ;  their  right  to  which  the  State  de- 
nies. On  several  of  the  matters  alleged  in  the  bill,  for  example 
on  the  laws  making  it  criminal  to  exercise  the  usual  powers  of 
self-government  in  their  own  country  by  the  Cherokee  nation, 
this  court  cannot  interpose;  at  least  in  the  form  in  which  those 
matters  are  presented. 

That  part  of  the  bill  which  respects  the  land  occupied  by  the 
Indians,  and  prays  the  aid  of  the  court  to  protect  their  posses- 
sion, may  be  more  doubtful.  The  mere  question  of  right  might, 
perhaps,  be  decided  by  this  court  in  a  proper  case  with  proper 
parties.  But  the  court  is  asked  to  do  more  than  decide  on  the 
title.  The  bill  requires  us  to  control  the  legislature  of  Georgia, 
and  to  restrain  the  exertion  of  its  physical  force.  The  propriety 
of  such  an  interposition  by  the  court  may  be  well  questioned.  It 
savors  too  much  of  the  exercise  of  political  power  to  be  within  the 
proper  province  of  the  judicial  department.  But  the  opinion 
on  the  point  respecting  parties,  makes  it  unnecessary  to  decide 
this  question. 

If  it  be  true  that  the  Cherokee  nation  have  rights,  this  is  not 
the  tribunal  in  which  those  rights  are  to  be  asserted.  If  it  be 
true  that  wrongs  have  been  inflicted,  and  that  still  greater  are 
to  be  apprehended,  this  is  not  the  tribunal  which  can  redress  the 
past  or  prevent  the  future. 

The  motion  for  an  injunction  is  denied. 

[MR.  JUSTICE  JOHNSON  and  MR.  JUSTICE  BALDWIN  delivered 
concurring  opinions.  MR.  JUSTICE  THOMPSON  delivered  a  dis- 
senting opinion  in  which  MR.  JUSTICE  STORY  concurred.] 

NOTE. — For  many  interesting  details  aa  to  the  circumstance!  giving  rise 
to  this  case  and  the  later  case  of  Worcester  v.  Georgia  (1832),  6  Peters,  515, 
and  the  effectual  nullification  of  the  decision  in  the  latter  by  President  Jack- 
son and  the  authorities  of  Georgia,  see  Phillips,  "Georgia  and  State 
Rights;"  Annual  Report  of  the  American  Historical  Association  for  1901, 
vol.  II.  A  valuable  account  of  the  subsequent  dealings  of  the  Federal  Gov- 
ernment with  the  Cherokee  tribe  is  given  in  Heckman  v.  United  States 
(1912),  224  U.  a  413. 


148  CASES  ON  CONSTITUTIONAL  LAW. 

LUTHER  v.  BORDEN. 

SUPREME  COUKT  OF  THE  UNITED  STATES.    1848. 
7  Howard,  1;  12  Lawyers'  Ed.  581. 

TANEY,  C.  J.,  delivered  the  opinion  of  the  court. 

This  case  has  arisen  out  of  the  unfortunate  political  differ- 
ences which  agitated  the  people  of  Rhode  Island  in  1841  and 
1842. 

It  is  an  action  of  trespass  brought  by  Martin  Luther,  the  plain- 
tiff in  error,  against  Luther  M.  Borden  and  other  defendants,  in 
the  circuit  court  of  the  United  States  for  the  district  of  Rhode 
Island,  for  breaking  and  entering  the  plaintiff's  house.  The  de- 
fendants justify  upon  the  ground  that  large  numbers  of  men 
were  assembled  in  different  parts  of  the  State  for  the  purpose  of 
overthrowing  the  government  by  military  force,  and  were  actu- 
ally levying  war  upon  the  State ;  that,  in  order  to  defend  itself 
from  this  insurrection,  the  State  was  declared  by  competent  au- 
thority to  be  under  martial  law;  that  the  plaintiff  was  engaged 
in  the  insurrection;  and  that  the  defendants,  being  in  the  mili- 
tary service  of  the  State,  by  command  of  their  superior  officer, 
broke  and  entered  the  house  and  searched  the  rooms  for  the  plain- 
tiff, who  was  supposed  to  be  there  concealed,  in  order  to  arrest 
him,  doing  as  little  damage  as  possible.  The  plaintiff  replied, 
that  the  trespass  was  committed  by  the  defendants  of  their  own 
proper  wrong,  and  without  any  such  cause ;  and  upon  the  issue 
joined  on  this  replication,  the  parties  proceeded  to  trial.  .  .  . 
The  existence  and  authority  of  the  government  under  which  the 
defendants  acted,  was  called  in  question ;  and  the  plaintiff  insists, 
that,  before  the  acts  complained  of  were  committed,  that  govern- 
ment had  been  displaced  and  annulled  by  the  people  of  Rhode 
Island,  and  that  the  plaintiff  was  engaged  in  supporting  the  law- 
ful authority  of  the  State,  and  the  defendants  themselves  were 
in  arms  against  it.  ... 

The  fourth  section  of  the  fourth  article  of  the  constitution  of 
the  United  States  provides  that  the  United  States  shall  guarantee 
to  every  State  in  the  Union  a  republican  form  of  government, 
and  shall  protect  each  of  them  against  invasion ;  and  on  the  ap- 
plication of  the  legislature  or  of  the  executive  (when  the  legis- 
lature cannot  be  convened)  against  domestic  violence. 

Under  this  article  of  the  constitution  it  rests  with  congress  to 
decide  what  government  is  the  established  one  in  a  State.  For 
as  the  United  States  guarantee  to  each  State  a  republican  gov- 
ernment, congress  must  necessarily  decide  what  government  is 


LUTHER  v.  BORDKN.  149 

established  in  the  State  before  it  can  determine  whether  it  is 
republican  or  not.  And  when  the  senators  and  representatives 
of  a  State  are  admitted  into  the  councils  of  the  Union,  the  author- 
ity of  the  government  under  which  they  are  appointed,  as  well 
as  its  republican  character,  is  recognized  by  the  proper  constitu- 
tional authority.  And  its  decision  is  binding  on  every  other  de- 
partment of  the  government,  and  could  not  be  questioned  in  a 
judicial  tribunal  It  is  true  that  the  contest  in  this  case  did  not 
last  long  enough  to  bring  the  matter  to  this  issue;  and  as  no 
senators  or  representatives  were  elected  under  the  authority  of 
the  government  of  which  Mr.  Dorr  was  the  head,  congress  was 
not  called  upon  to  decide  the  controversy.  Yet  the  right  to 
decide  is  placed  there,  and  not  in  the  courts. 

So,  too,  as  relates  to  the  clause  in  the  above-mentioned  article 
of  the  constitution,  providing  for  cases  of  domestic  violence.  It 
rested  with  congress,  too,  to  determine  upon  the  means  proper  to 
be  adopted  to  fulfill  this  guarantee.  They  might,  if  they  had 
deemed  it  most  advisable  to  do  so,  have  placed  it  in  the  power 
of  a  court  to  decide  when  the  contingency  had  happened  which 
required  the  federal  government  to  interfere.  But  congress 
thought  otherwise,  and  no  doubt  wisely ;  and  by  the  act  of  Feb- 
ruary 28, 1795,  provided,  that,  "in  case  of  an  insurrection  in  any 
State  against  the  government  thereof,  it  shall  be  lawful  for  the 
President  of  the  United  States,  on  application  of  the  legislature 
of  such  State  or  of  the  executive,  when  the  legislature  cannot  be 
convened,  to  call  forth  such  number  of  militia  of  any  other  State 
or  States,  as  may  be  applied  for,  as  he  may  judge  sufficient  to 
suppress  such  insurrection." 

By  this  act,  the  power  of  deciding  whether  the  exigency  had 
arisen  upon  which  the  government  of  the  United  States  is  bound 
to  interfere,  is  given  to  the  President.  He  is  to  act  upon  the  ap- 
plication of  the  legislature,  or  of  the  executive,  and  consequently 
he  must  detenmine  what  body  of  men  constitute  the  legislature, 
and  who  is  the  governor,  before  he  can  act.  The  fact  that  both 
parties  claim  the  right  to  the  government,  cannot  alter  the  case, 
for  both  cannot  be  entitled  to  it.  If  there  is  an  armed  conflict, 
like  the  one  of  which  we  are  speaking,  it  is  a  case  of  domestic 
violence,  and  one  of  the  parties  must  be  in  insurrection  against 
the  lawful  government  And  the  President  must,  of  necessity, 
decide  which  is  Ihe  government,  and  which  party  is  unlawfully 
arrayed  against  it,  before  he  can  perform  the  duty  imposed  upon 
him  by  the  act  of  congress. 

After  the  President  has  acted  and  called  out  the  militia,  is  a 


150  CASES  ON  CONSTITUTIONAL  LAW. 

circuit  court  of  the  United  States  authorized  to  inquire  whether 
his  decision  was  right?  Could  the  court,  while  the  parties  were 
actually  contending  in  arms  for  the  possession  of  the  govern- 
ment, call  witnesses  before  it,  and  inquire  which  party  repre- 
sented a  majority  of  the  people?  If  it  could,  then  it  would  be- 
come the  duty  of  the  court  (provided  it  came  to  the  conclusion 
that  the  President  had  decided  incorrectly)  to  discharge  those 
who  were  arrested  or  detained  by  the  troops  in  the  service  of  the 
United  States,  or  the  government  which  the  President  was  en- 
deavoring to  maintain.  If  the  judicial  power  extends  so  far,  the 
guarantee  contained  in  the  constitution  of  the  United  States  is  a 
guarantee  of  anarchy,  and  not  of  order.  Y«t  if  this  right  does 
not  reside  in  the  courts  when  the  conflict  is  raging — if  the  judi- 
cial power  is,  at  that  time,  bound  to  follow  the  decision  of  the 
political,  it  must  be  equally  bound  when  the  contest  is  over.  It 
cannot,  when  peace  is  restored,  punish  as  offenses  and  crimes 
the  acts  which  it  before  recognized,  and  was  bound  to  recognize, 
as  lawful. 

It  is  true  that  in  this  case  the  militia  were  not  called  out  by 
the  President.  But  upon  the  application  of  the  governor  under 
the  charter  government,  the  President  recognized  him  as  the 
executive  power  of  the  State,  and  took  measures  to  call  out  the 
militia  to  support  his  authority,  if  it  should  be  found  necessary 
for  the  general  government  to  interfere ;  and  it  is  admitted  in 
the  argument  that  it  was  the  knowledge  of  this  decision  that  put 
an  end  to  the  armed  opposition  to  the  charter  government,  and 
prevented  any  further  efforts  to  establish  by  force  the  proposed 
constitution.  The  interference  of  the  President,  therefore,  by 
announcing  his  determination,  was  as  effectual  as  if  the  militia 
had  been  assembled  under  his  orders.  And  it  should  be  equally 
authoritative.  For  certainly  no  court  of  the  United  States,  with 
a  knowledge  of  this  decision,  would  have  been  justified  in  recog- 
nizing the  opposing  party  as  the  lawful  government,  or  in  treat- 
ing as  wrong-doers  or  insurgents  the  officers  of  the  government 
which  the  President  had  recognized,  and  was  prepared  to  sup- 
port by  an  armed  force.  In  the  case  of  foreign  nations,  the  gov- 
ernment acknowledged  by  the  President  is  always  recognized  in 
the  courts  of  justice.  And  this  principle  has  been  applied  by  the 
act  of  congress  to  the  sovereign  States  of  the  Union. 

It  is  said  that  this  power  in  the  President  is  dangerous  to  lib- 
erty, and  may  be  abused.  All  power  may  be  abused  if  placed  in 
unworthy  hands.  But  it  would  be  difficult,  we  think,  to  point 
out  any  other  hands  in  which  this  power  would  be  more  safe, 


LUTHER  v.  BORDEN.  151 

and  at  the  same  time  equally  effectual.  When  citizens  of  the 
same  State  are  in  arms  against  each  other,  and  the  constitute! 
authorities  unable  to  execute  the  laws,  the  interposition  of  the 
United  States  must  be  prompt,  or  it  is  of  little  value.  The  ordi- 
nary course  of  proceedings  in  courts  of  justice  would  be  utterly 
unfit  for  the  crisis.  And  the  elevated  office  of  the  President, 
chosen  as  he  is  by  the  people  of  the  United  States,  and  the  high 
responsibility  he  could  not  fail  to  feel  when  acting  in  a  case  of 
so  much  moment,  appear  to  furnish  as  strong  safeguards  against 
a  wilful  abuse  of  power  as  human  prudence  and  foresight  could 
well  provide.  At  all  events,  it  is  conferred  upon  him  by  the  con- 
stitution and  laws  of  the  United  States,  and  must,  therefore,  be 
respected  and  enforced  in  its  judicial  tribunals. 

A  question  very  similar  to  this  arose  in  the  case  of  Martin  v. 
Mott,  12  Wheat.  29-31.  The  first  clause  of  the  first  section  of  the 
act  of  February  28, 1795,  of  which  we  have  been  speaking,  author- 
izes the  President  to  call  out  the  militia  to  repel  invasion.  It  is 
the  second  clause  in  the  same  section  which  authorizes  the  call  to 
suppress  an  insurrection  against  a  state  government.  The  power 
given  to  the  President  in  each  case  is  the  same,  with  this  differ- 
ence only,  that  it  cannot  be  exercised  by  him  in  the  latter  case, 
except  upon  the  application  of  the  legislature  or  executive  of  the 
State.  The  case  above  mentioned  arose  out  of  a  call  made  by  the 
President,  by  virtue  of  the  power  conferred  by  the  first  clause ; 
and  the  court  said  that  "whenever  a  statute  gives  a  discretionary 
power  to  any  person,  to  be  exercised  by  him  upon  his  own  opin- 
ion of  certain  facts,  it  is  a  sound  rule  of  construction  that  the 
statute  constitutes  him  the  sole  and  exclusive  judge  of  the  exist- 
ence of  those  facts."  The  ground  upon  which  that  opinion  is 
maintained  are  set  forth  in  the  report,  and,  we  think,  are  con- 
clusive. The  same  principle  applies  to  the  case  now  before  the 
court.  Undoubtedly,  if  the  President,  in  exercising  this  power 
shall  fall  into  error,  or  invade  the  rights  of  the  people  of  the 
State,  it  would  be  in  the  power  of  congress  to  apply  the  proper 
remedy.  But  the  courts  must  administer  the  law  as  they  find 
it.  ... 

Much  of  the  argument  on  the  part  of  the  plaintiff  turned  upon 
political  rights  and  political  questions,  upon  which  the  court  has 
been  urged  to  express  an  opinion.  We  decline  doing  so.  The  high 
power  has  been  conferred  on  this  court  of  passing  judgment  upon 
the  acts  of  the  state  sovereignties,  and  of  the  legislative  and  ex- 
ecutive branches  of  the  federal  government,  and  of  determining 
whether  they  are  beyond  the  limits  of  power  marked  out  for  them 


152  CASES  ON  CONSTITUTIONAL  LAW. 

respectively  by  the  constitution  of  the  United  States.  This  tribu- 
nal, therefore,  should  be  the  last  to  overstep  the  boundaries  which 
limit  its  own  jurisdiction.  And  while  it  should  always  be  ready 
to  meet  any  question  confided  to  it  by  the  constitution,  it  is 
equally  its  duty  not  to  pass  beyond  its  appropriate  sphere  of 
action,  and  to  take  care  not  to  involve  itself  in  discussions  which 
properly  belong  to  other  forums.  No  one,  we  believe,  has  ever 
doubted  the  proposition,  that,  according  to  the  institutions  of 
this  country,  the  sovereignty  in  every  State  resides  in  the  people 
of  the  State,  and  that  they  may  alter  and  change  their  form  of 
government  at  their  own  pleasure.  But  whether  they  have 
changed  it  or  not,  by  abolishing  an  old  government,  and  estab- 
lishing a  new  one  in  its  place,  is  a  question  to  be  settled  by  the 
political  power.  And  when  that  power  has  decided,  the  courts 
are  bound  to  take  notice  of  its  decision,  and  to  follow  it. 

The  judgment  of  the  circuit  court  must,  therefore,  be  affirmed. 

WOODBUBY,  J.,  dissenting.    .     .    . 

NOTE. — For  an  account  of  the  events  out  of  which  this  case  arose  see 
Mowry,  Dorr's  Rebellion.  As  to  what  is  a  republican  form  of  government 
see  In  re  Duncan  (1891),  139  U.  S.  461,  Taylor  and  Marshall  v.  Kentucky 
(1900),  178  U.  S.  548,  and  Pacific  Telephone  Co.  v.  Oregon  (1912),  223  U. 
S.  118.  As  to  what  is  a  political  question,  see  United  States  v.  Holliday 
(1866),  3  Wallace,  407,  Lone  Wolf  v.  Hitchcock  (1903),  187  U.  S.  553 
(tribal  relations  of  a  group  of  Indians)  ;  Cherokee  Nation  v.  Georgia  (1831), 
5  Peters,  1  (relation  of  an  Indian  tribe  to  a  State) ;  Tiger  v.  Western  In- 
vestment Co.  (1911),  221  U.  S.  286  (when  Indian  guardianship  shall  cease) ; 
United  States  v.  Eealty  Company  (1896),  163  U.  S.  427  (recognition  of  claims 
against  the  United  States);  Martin  v.  Mott  (1827),  12  Wheaton,  19  (neces- 
sity of  calling  out  the  militia);  Georgia  v.  Stanton  (1868),  6  Wallace,  50 
(the  corporate  rights  of  a  State).  All  questions  touching  the  international 
relations  of  the  country  are  within  the  peculiar  province  of  the  political 
departments  of  the  government.  See  The  Nereide  (1815),  9  Cranch.  388 
(whether  retaliatory  measures  toward  another  country  shall  be  adopted) ; 
Gelston  v.  Hoyt  (1818),  3  Wheaton,  246,  United  States  v.  Palmer  (1818), 
3  Wheaton,  610,  The  Divina  Pastora  (1819),  4  Wheaton,  52,  The  Santissima 
Trinidad  (1822),  7  Wheaton,  283,  Kennett  v.  Chambers  (1852),  14  Howard, 
38,  The  Three  Friends  (1897),  166  U.  S.  1  (the  recognition  of  the  belliger- 
ency or  independence  of  a  foreign  community);  Foster  v.  Nielson  (1829), 
2  Peters,  253,  United  States  v.  Arredondo  (1832),  6  Peters,  691;  Garcia  v. 
Lee  (1838),  12  Peters,  511,  Ex  parte  Cooper  (1892),  143  U.  S.  472  (the 
boundaries  of  the  United  States) ;  Williams  v.  Suffolk  Insurance  Co.  (1839), 
13  Peters,  415,  Jones  v.  United  States  (1890),  137  U.  S.  202,  Pearcy  v.  Stran- 
ahan  (1907),  205  U.  S.  257  (who  is  sovereign  of  foreign  territory)  ;  Doe  v. 
Braden  (1854),  16  Howard,  635  (whether  a  treaty  with  another  country  has 
been  sufficiently  ratified  by  that  country) ;  Terlinden  v.  Ames  (1901),  184 
U.  S.  270  (whether  a  treaty  is  still  in  force);  Neeley  v.  Henkel  (1901), 
180  U.  S.  109  (how  long  the  military  occupation  of  a  foreign  country  shall 


SOUTH  DAKOTA  v.  NORTH  CAROLINA.          153 

continue) ;  In  re  Baiz  (1890),  135  U.  8.  432  (status  of  one  claiming  to  be 
the  diplomatic  representative  of  another  country).  In  The  Pelican  (1809), 
Edw.  Adm.,  app.  D,  Sir  William  Grant  said,  "It  always  belongs  to  the  gov- 
ernment of  the  country  to  determine  in  what  relation  any  other  country 
stands  to  it;  that  is  a  point  upon  which  courts  of  justice  cannot  decide." 


SOUTH  DAKOTA  v.  NORTH  CAROLINA. 

SUPREME  COURT  or  THE  UNITED  STATES.    1904. 
192  U.  8.  286;  48  Lawyers'  Ed.  448. 

ORIGINAL. 

[In  1866  the  State  of  North  Carolina  authorized  the  issue  of 
bonds  to  complete  the  Western  North  Carolina  Railway,  with  the 
proviso  that  such  bonds  should  be  secured  by  mortgages  of  equiv- 
alent amounts  on  the  stock  owned  by  the  State  in  another  rail- 
way. In  1901  the  owners  of  a  large  part  of  the  outstanding  bonds 
presented  ten  of  them  to  the  State  of  South  Dakota,  which  then 
filed  a  bill  asking  that  North  Carolina  be  required  to  pay  the 
amount  due  on  the  bonds  and  that  in  default  of  payment  the 
railway  shares  on  the  security  of  which  the  bonds  were  issued 
might  be  sold.] 

MR.  JUSTICE  BREWER  .  .  .  delivered  the  opinion  of  the 
court. 

There  can  be  no  reasonable  doubt  of  the  validity  of  the  bonds 
and  mortgages  in  controversy.  There  is  no  challenge  of  the  stat- 
utes by  which  they  were  authorized.  .  .  .  Neither  can  there 
be  any  question  respecting  the  title  of  South  Dakota  to  these 
bonds.  They  are  not  held  by  the  State  as  representative  of  indi- 
vidual owners,  as  in  the  case  of  New  Hampshire  v.  Louisiana, 
108  U.  S.  76,  for  they  were  given  outright  and  absolutely  to  the 
State.  .  .  . 

The  title  of  South  Dakota  is  as  perfect  as  though  it  had  re- 
<1  these  bonds  directly  from  North  Carolina.  We  have,  there- 
fore, before  us  the  case  of  a  State  with  an  unquestionable  title  to 
bonds  issued  by  another  State,  secured  by  a  mortgage  of  railroad 
stock  belonging  to  that  State,  coming  into  this  court  and  invok- 
iui:  its  jurisdiction  to  compel  payment  of  those  bonds  and  a  sub- 
jection of  the  mortgaged  property  to  the  satisfaction  of  the 
debt.' 

Has  this  court  jurisdiction  of  such  a  controversy,  and  to  what 
extent  may  it  grant  relief?  Obviously,  that  jurisdiction  is  not 


154  CASES  ON  CONSTITUTIONAL  LAW. 

affected  fty  the  fact  that  the  donor  of  these  bonds  could  not  in- 
voke it.  ...  Obviously,  too,  the  subject-matter  is  one  of 
judicial  cognizance.  If  anything  can  be  considered  as  justici- 
able it  is  a  claim  for  money  due  on  a  written  promise  to  pay 
and  if  it  be  justifiable,  does  it  matter  how  the  plaintiff  acquires 
title,  providing  it  be  honestly  acquired  ?  .  .  . 

Coming  now  to  the  right  of  South  Dakota  to  maintain  this 
suit  against  North  Carolina,  we  remark  that  it  is  a  controversy 
between  two  States ;  that  by  §  2,  art.  Ill  of  the  Constitution  this 
court  is  given  original  jurisdiction  of  "controversies  between  two 
or  more  States,"  In  Missouri  v.  Illinois  and  the  Sanitary  Dis- 
trict of  Chicago,  180  U.  S.  208,  Mr.  Justice  Shiras,  speaking  for 
the  court,  reviewed  at  length  the  history  of  the  incorporation  of 
this  provision ,  into  the  Federal  Constitution,  and  the  decisions 
rendered  by  this  court  in  respect  to  such  jurisdiction,  closing 
with  these  words  (p.  240)  : 

' '  The  cases  cited  show  that  such  jurisdiction  has  been  exercised 
in  cases  involving  boundaries  and  jurisdiction  over  lands  and 
their  inhabitants,  and  in  cases  directly  affecting  the  property 
rights  and  interests  of  a  State." 

The  present  case  is  one  ' '  directly  affecting  the  property  rights 
and  interests  of  a  State." 

Although  a  repetition  of  this  review  is  unnecessary,  two  or 
three  matters  are  worthy  of  notice.  The  original  draft  of  the 
Constitution  reported  to  the  convention  gave  to  the  Senate  juris- 
diction of  all  disputes  and  controversies  "between  two  or  more 
States,  respecting  jurisdiction  or  territory, ' '  and  to  the  Supreme 
Court  jurisdiction  of  ' '  controversies  between  two  or  more  States, 
except  such  as  shall  regard  territory  or  jurisdiction."  A  claim 
for  money  due  being  a  controversy  of  a  justiciable  nature,  and  one 
of  the  most  common  of  controversies,  would  seem  to  naturally 
fall  within  the  scope  of  the  jurisdiction  thus  intended  to  be  con- 
ferred upon  the  Supreme  Court.  In  the  subsequent  revision  by 
the  convention  the  power  given  to  the  Senate  in  respect  to  con- 
troversies between  the  States  was  stricken  out,  as  well  as  the 
limitation  upon  the  jurisdiction  of  this  court,  leaving  to  it  in  the 
language  now  found  in  the  Constitution  jurisdiction  without  any 
limitation  of  ' '  controversies  between  two  or  more  States. ' ' 

The  Constitution  as  it  originally  stood  also  gave  to  this  court 
jurisdiction  of  controversies  "between  a  State  and  citizens  of 
another  State."  Under  that  clause  Chisholm  v.  Georgia,  2  Dall. 
419,  was  decided,  in  which  it  was  held  that  a  citizen  of  one  State 
might  maintain  -in  this  court  an  action  of  assumpsit  against 


SOUTH  DAKOTA  v.  NORTH  CAROLINA.          155 

another  State.  In  consequence  of  that  decision  the  Eleventh 
Amendment  was  adopted,  which  provides  that  the  "judicial 
power  of  the  United  States  shall  not  be  construed  to  extend  to 
any  suit  in  law  or  equity,  commenced  or  prosecuted  against  one 
of  the  United  States  by  citizens  of  another  State,  or  by  citizens 
or  subjects  of  any  foreign  State."  It  will  be  perceived  that  this 
amendment  only  granted  to  a  State  immunity  from  suit  by  an 
individual,  and  did  not  affect  the  jurisdiction  over  controversies 
between  two  or  more  States.  .  .  . 

In  Rhode  Island  v.  Massachusetts,  12  Pet.  657,  this  court  sus- 
tained its  jurisdiction  of  a  suit  in  equity  brought  by  one  State 
against  another  to  determine  a  dispute  as  to  boundary,  and,  in 
the  course  of  the  opinion,  by  Mr.  Justice  Baldwin,  said  in  respect 
to  the  immunity  of  a  sovereign  from  suit  by  an  individual  (p. 
720): 

"Those  States,  in  their  highest  sovereign  capacity,  in  the  con- 
vention of  the  people  thereof,  .  .  .  adopted  the  Constitution, 
by  which  they  respectively  made  to  the  United  States  a  grant  of 
judicial  power  over  controversies  between  two  or  more  States,  By 
the  Constitution,  it  was  ordained  that  this  judicial  power,  in  cases 
where  a  State  was  a  party,  should  be  exercised  by  this  court  as 
one  of  original  jurisdiction.  The  States  waived  their  exemption 
from  judicial  power,  (6  Wheat.  378,  380,)  as  sovereigns  by  orig- 
inal and  inherent  right,  by  their  own  grant  of  its  exercise  over 
themselves  in  such  cases,  but  which  they  would  not  grant  to  any 
inferior  tribunal.  By  this  grant,  this  court  has  acquired  juris- 
diction over  the  parties  in  this  cause,  by  their  own  consent  and 
delegated  authority;  as  their  agent  for  executing  the  judicial 
power  of  the  United  States  in  the  cases  specified." 

And,  again,  in  reference  to  the  extent  of  the  jurisdiction  of 
this  court  (p.  721): 

"That  it  is  a  controversy  between  two  States  cannot  Jbe  denied ; 
and  though  the  Constitution  does  not,  in  terms,  extend  the  judi- 
cial power  to  all  controversies  between  two  or  more  States,  yet  it, 
in  terms,  excludes  none,  whatever  may  be  their  nature  or  sub- 
ject." 

In  United  States  v.  North  Carolina,  136  U.  S.  211,  we  took 
jurisdiction  of  an  action  brought  by  the  United  States  against 
North  Carolina  to  recover  interest  on  bonds,  and  decided  the  case 
upon,  its  merits.  It  is  true  there  was  nothing  in  the  opinion  in 
reference  to  the  matter  of  jurisdiction,  but  as  said  in  United 
States  v.  Texas,  143  U.  S.  621,  642:  .  .  . 

"But  it  did  not  escape  the  attention  of  the  court,  and  the 


156  CASES  ON  CONSTITUTIONAL  LAW. 

judgment  would  not  have  been  rendered  except  upon  the  theory 
that  this  court  has  original  jurisdiction  of  a  suit  by  the  United 
States  against  a  State. ' ' 

See  also  United  States  v.  Michigan,  190  U.  S.  379,  decided  at 
the  last  term,  in  which  a  bill  in  equity  for  an  accounting  and  a 
recovery  of  money  was  sustained.  .  .  . 

Without  noticing  in  detail  the  other  cases  referred  to  by  Mr. 
Justice  Shiras  in  Missouri  v.  Illinois  et  al.,  180  U.  S.  208,  it  is 
enough  to  say  that  the  clear  import  of  the  decisions  of  this  court 
from  the  beginning  to  the  present  time  is  in  favor  of  its  juris- 
diction over  an  action  brought  by  one  State  against  another,  to 
enforce  a  property  right.  Chisholm  v.  Georgia  was  an  action  of 
assumpsit ;  United  States  v.  North  Carolina,  an  action  of  debt ; 
United  States  v.  Michigan,  a  suit  for  an  accounting;  and  that 
which  was  sought  in  each  was  a  money  judgment  against  the  de- 
fendant State. 

But  we  are  confronted  with  the  contention  that  there  is  no 
power  in  this  court  to  enforce  such  a  judgment,  and  such  lack  of 
power  is  conclusive  evidence  that,  notwithstanding  the  general 
language  of  the  Constitution,  there  is  an  implied  exception  of  ac- 
tions brought  to  recover  money.  The  public  property  held  by 
any  municipality,  city,  county,  or  State  is  exempt  from  seizure 
upon  execution,  because  it  is  held  by  such  corporation,  not  as  a 
part  of  its  private  assets,  but  as  a  trustee  for  public  purposes. 
Meriwether  v.  Garrett,  102  U.  S.  472,  513.  As  a  rule,  no  such 
municipality  has  any  private  property  subject  to  be  taken  upon 
execution.  A  levy  of  taxes  is  not  within  the  scope  of  the  judicial 
power  except  as  it  commands  an  inferior  municipality  to  execute 
the  power  granted  by  the  legislature. 

In  Rees  v.  City  of  Watertown,  19  Wall.  107,  116,  117,  we  said : 

"We  are  of  the  opinion  that  this  court  has  not  the  power  to 
direct  a  tax  to  be  levied  for  the  payment  of  these  judgments. 
This  power  to  impose  burdens  and  raise  money  is  the  highest 
attribute  of  sovereignty,  and  is  exercised,  first,  to  raise  money  for 
public  purposes  only;  and,  second,  by  the  power  of  legislative 
authority  only.  It  is  a  power  that  has  not  been  extended  to  the 
judiciary.  Especially  is  it  beyond  the  power  of  the  Federal 
judiciary  to  assume  the  place  of  a  State  in  the  exercise  of  this 
authority,  at  once  so  delicate  and  so  important."  .  .  . 

Further,  in  this  connection  may  be  noticed  Gordon  v.  United 
States,  117  U.  S.  697,  in  which  this  court  declined  to  take  juris- 
diction of  an  appeal  from  the  Court  of  Claims,  under  the  statute 
as  it  stood  at  the  time  of  the  decision,  on  the  ground  that  there 


SOUTH  DAKOTA  v.  NORTH  CAROLINA  157 

was  not  vested  by  the  act  of  Congress  power  to  enforce  its  judg- 
ment. We  quote  the  following  from  the  opinion,  which  was  the 
last  prepared  by  Chief  Justice  Taney  (pp.  702,  704) : 

"The  award  of  execution  is  a  part,  and  an  essential  part,  of 
every  judgment  passed  by  a  court  exercising  judicial  power.  It 
is  no  judgment,  in  the  legal  sense  of  the  term,  without  it.  With- 
out such  an  award  the  judgment  would  be  inoperative  and  nuga- 
tory, leaving  the  aggrieved  party  without  a  remedy.  .  .  . 
Indeed,  no  principle  of  constitutional  law  has  been  more  firmly 
established  or  constantly  adhered  to  than  the  one  above  stated, — 
that  is,  that  this  court  has  no  jurisdiction  in  any  case  where  it 
cannot  render  judgment  in  the  legal  sense  of  the  term ;  and  wherf 
it  depends  upon  the  legislature  to  carry  its  opinion  into  effect 
or  not  at  the  pleasure  of  Congress."  See  also  In  re  Sanborn,  148 
U.  S.  222,  and  La  Abra  Silver  Mining  Co.  v.  United  States,  175 
U.  S.  423,  456. 

We  have,  then,  on  the  one  hand  the  general  language  of  the 
Constitution,  vesting  jurisdiction  in  this  court  over  "controver- 
sies between  two  or  more  States,"  the  history  of  that  jurisdic- 
tional  clause  in  the  convention,  the  cases  of  Chisholm  v.  Georgia, 
United  States  v.  North  Carolina,  and  United  States  v.  Michigan, 
(in  which  this  court  sustained  jurisdiction  over  actions  to  recover 
money  from  a  State,)  the  manifest  trend  of  other  decisions,  the 
necessity  of  some  way  of  ending  controversies  between  States,  and 
the  fact  that  this  claim  for  the  payment  of  money  is  one  justicia- 
ble  in  its  nature;  on  the  other,  certain  expression  of  individual 
opinions  of  justices  of  this  court,  the  difficulty  of  enforcing  a 
judgment  for  money  against  a  State  by  reason  of  its  ordinary 
lack  of  private  property  subject  to  seizure  upon  execution,  and 
the  absolute  inability  of  a  court  to  compel  a  levy  of  taxes  by  the 
legislature.  Notwithstanding  the  embarrassments  which  sur- 
round the  question,  it  is  directly  presented,  and  may  have  to  be 
determined  before  the  case  is  finally  concluded,  but  for  the  pres- 
ent it  is  sufficient  to  state  the  question  with  its  difficulties. 

There  is  in  this  case  a  mortgage  of  property,  and  the  sale  of 
that  property  under  a  foreclosure  may  satisfy  the  plaintiff's 
claim.  If  that  should  be  the  result,  there  would  be  no  necessity 
for  a  personal  judgment  against  the  State.  That  the  State  is  a 
necessary  party  to  the  foreclosure  of  the  mortgage  was  settled  by 
Christian  v.  Atlantic  &  N.  C.  R.  Co.,  133  U.  S.  233.  Equity  is 
satisfied  by  a  decree  for  a  foreclosure  and  sale  of  the  mortgaged 
property,  leaving  the  question  of  a  judgment  over  for  any  de- 
ficiency to  be  determined  when,  if  ever,  it  arises.  And  surely  if, 


158  CASES  ON  CONSTITUTIONAL  LAW. 

as  we  have  often  held,  this  court  has  jurisdiction  of  an  action 
by  one  State  against  another  to  recover  a  tract  of  land,  there 
would  seem  to  be  no  doubt  of  the  jurisdiction  of  one  to  enforce 
the  delivery  of  personal  property. 

A  decree  will,  therefore,  be  entered,  which,  after  finding  the 
amount  due  on  the  bonds  and  coupons  in  suit  to  be  twenty-seven* 
thousand  four  hundred  dollars  ($27,400),  (no  interest  being  re- 
coverable, United  States  v.  North  Carolina,  136  U.  S.  211),  and 
that  the  same  are  secured  by  100  shares  of  the  stock  of  the  North 
Carolina  Railroad  Company,  belonging  to  the  State  of  North 
Carolina,  shall  order  that  the  said  State  of  North  Carolina  pay 
said  amount  with  costs  of  suit  to  the  State  of  South  Dakota  on  or 
before  the  1st  Monday  of  January,  1905,  and  that  in  default  of 
such  payment  an  order  of  sale  be  issued  to  the  Marshal  of  this 
court,  directing  him  to  sell  at  public  auction  all  the  interests  of 
the  State  of  North  Carolina  in  and  to  one  hundred  shares  of  the 
capital  stock  of  the  North  Carolina  Railroad  Company,  such  sale 
to  be  made  at  the  east  front  door  of  the  Capitol  Building  in  this 
city,  public  notice  to  be  given  of  such  sale  by  advertisements  once 
a  week  for  six  weeks  in  some  daily  paper  published  in  the  City 
of  Raleigh,  North  Carolina,  and  also  in  some  daily  paper  pub- 
lished in  the  City  of  Washington. 

And  either  of  the  parties  to  this  suit  may  apply  to  the  court 
upon  the  foot  of  this  decree,  as  occasion  may  require. 

MR.  JUSTICE  WHITE,  with  whom  concurred  MB.  CHIEF  JUSTICE 
FULLER,  MR.  JUSTICE  MCKENNA,  and  MR.  JUSTICE  DAY,  dis- 
senting. .  .  . 

NOTE. — Of  the  later  history  of  this  case,  Justice  Brewer  said :  "If  the 
amount  received  from  the  sale  of  the  stock  had  not  paid  the  bonds, 
the  question  would  have  been  presented  whether  we  could  render  a  money 
judgment  against  a  State;  and,  if  so,  how  it  could  be  enforced.  We  could 
not  compel  the  Legislature  of  North  Carolina  to  meet  and  pass  an  act;  the 
marshal  could  not  levy  upon  the  public  buildings  of  the  State;  what  would 
be  the  significance  of  a  judgment  which  the  court  was  powerless  to  enforce? 
You  may  remember  as  an  historical  fact  that  Andrew  Jackson  once  said, 
'John  Marshall  has  rendered  a  judgment,  now  let  him  enforce  it  if  he  can.' 

"The  day  before  that  fixed  for  the  sale  of  those  bonds  the  Attorney- 
General  of  North  Carolina  came  to  my  house,  for  I  was  the  organ  of  the 
court  in  delivering  the  opinion,  and  said  that  he  had  been  sent  by  the  Gov- 
ernor to  pay  the  full  amount  that  we  had  found  to  be  due;  that  the  State 
did  not  intend  to  raise  any  question  as  to  what  could  or  should  be  done  in 
case  of  a  deficiency  after  the  sale  of  the  stock,  and  that  inasmuch  as  the 
court  created  by  the  Constitution  and  charged  with  the  duty  of  determining 
controversies  between  the  States  had  declared  that  a  certain  sum  was  due 
from  North  Carolina  to  South  Dakota  he  was  directed  by  the  State  to  pay 


SOUTH  DAKOTA  v.  NORTH  CAROLINA.          159 

that;  every  dollar,  as  well  as  the  cost  of  the  case.  And  then  and  there  he 
did  so."— Report  of  the  Thirteenth  Annual  Meeting  of  the  Lake  Motion i 
Conference  on  International  Arbitration,  1907,  pp.  170-171. 

For  the  settlement  of  controversies  between  the  States  under  the  Articles 
of  Confederation,  see  131  U.  8.  Appendix,  1,  Ixiii.  Most  of  the  suits  be- 
tween States  which  have  arisen  since  the  adoption  of  the  Constitution  have 
related  to  boundary  disputes.  See  New  Jersey  v.  New  York  (1831),  5 
Peters  284;  Missouri  v.  Iowa  (1849),  7  Howard,  660;  Florida  v.  Georgia 
(1850),  11  Howard,  293;  Florida  v.  Georgia  (1855),  17  Howard,  478;  Ala- 
bama  v.  Georgia  (1860),  23  Howard,  505;  Virginia  v.  West  Virginia  (1870), 
11  Wallace,  39;  South  Carolina  v.  Georgia  (1876),  93  U.  8.  4;  Indiana  v. 
Kentucky  (1890),  136  U.  8.  479;  Virginia  v.  Tennessee  (1895),  158  U.  8. 
267;  Louisiana  v.  Mississippi  (1902),  202  U.  8.  158;  Iowa  v.  Illinois  (1906), 
202  U.  8.  59.  For  a  suit  involving  a  pecuniary  demand,  see  Virginia  v.  West 
Virginia  (1907),  206  U.  8.  290,  (1908),  209  U.  S.  514,  (1911),  220  U.  8. 
1,  (1914),  234  U.  a  117,  (1915),  238  U.  8.  202.  While  the  language  of  the 
Constitution  conferring  upon  the  Federal  courts  jurisdiction  over  suits 
between  States  is  unqualified,  it  has  been  held  that  not  all  controversies  be- 
tween States  are  justifiable  in  their  nature.  Wisconsin  v.  Pelican  Insurance 
Co.  (1888),  127  U.  8.  265,  Louisiana  v.  Texas  (1900),  176  U.  S.  1.  In  suits 
between  States  it  must  appear  that  the  plaintiff  State  is  not  a  mere  cloak  for 
the  real  party  in  interest,  New  Hampshire  v.  Louisiana  (1883),  108  U.  S.  76, 
but  a  State  may  sue  when  the  interest  involved  is  that  of  a  considerable 
number  of  its  citizens  rather  than  that  of  the  State  itself.  Missouri  v. 
Illinois  &  Chicago  District  (1901),  180  U.  8.  208.  The  law  governing  suits 
between  States  is  fully  discussed  in  Kansas  v.  Colorado  (1902),  185  U.  8. 
125,  same  ease  at  a  later  stage  (1907),  206  U.  8.  46.  These  opinions  merit 
careful  study. 

As  to  suits  by  the  United  States  against  a  State,  see  United  States  r. 
North  Carolina  (1890),  136  U.  8.  211,  United  States  v.  Texas  (1891),  143 
621,  and  United  States  v.  Michigan  (1903),  190  U.  S.  379.  As  to 
suits  by  a  State  against  the  United  States,  see  United  States  v.  Lee  (1882), 
106  U.  8.  196;  Minnesota  v.  Hitchcock  (1902),  185  U.  S.  373;  Oregon  v. 
Hitchcock  (1906),  202  U.  8.  60;  Kansas  v.  United  States  (1907),  204 
U.  8.  331. 


CHAPTER  IV. 
THE  IMPAIRMENT  OF  CONTRACTS. 

No  State  shall     .     .     .     pass  any     .     .     .     law  impairing  the 
obligation  of  contracts. 

Constitution  of  the  United  States,  Art.  I,  sec.  10. 

SECTION  1.    WHAT  is  A  " CONTRACT." 

THE  TRUSTEES  OF  DARTMOUTH  COLLEGE  v.  WOOD- 
WARD. 

SUPREME  COURT  OF  THE  UNITED  STATES.    1819. 
4  Wheaton,  518;  4  Lawyers'  Ed.  629. 

Error  to  the  superior  court  of  the  State  of  New  Hampshire. 

MARSHALL,  C.  J.,  delivered  the  opinion  of  the  court.     .     .     . 

This  is  an  action  of  trover  brought  by  the  Trustees  of  Dart- 
mouth College  against  William  H.  Woodward,  in  the  state  court 
of  New  Hampshire,  for  the  book  of  records,  corporate  seal,  and 
other  corporate  property,  to  which  the  plaintiffs  allege  themselves 
to  be  entitled. 

A  special  verdict,  after  setting  out  the  rights  of  the  parties, 
finds  for  the  defendant,  if  certain  acts  of  the  legislature  of  New 
Hampshire,  passed  on  the  27th  of  June,  and  on  the  18th  of  De- 
cember, 1816,  be  valid,  and  binding  on  the  trustees  without  their 
assent,  and  not  repugnant  to  the  constitution  of  the  United 
States;  otherwise  it  finds  for  the  plaintiffs. 

The  superior  court  of  judicature  of  New  Hampshire  rendered 
a  judgment  upon  this  verdict  for  the  defendant,  which  judgment 
has  been  brought  before  this  court  by  writ  of  error.  The  single 
question  now  to  be  considered  is,  do  the  acts  to  which  the  verdict 
refers  violate  the  constitution  of  the  United  States? 

This  court  can  be  insensible  neither  to  the  magnitude  nor  to 
the  delicacy  of  this  question.  The  validity  of  a  legislative  act  is 
to  be  examined;  and  the  opinion  of  the  highest  law  tribunal  of 
a  State  is  to  be  revised ;  an  opinion  which  carries  with  it  intrinsic 
evidence  of  the  diligence,  of  the  ability,  and  the  integrity  with 
which  it  was  formed.  On  more  than  one  occasion  this  court  has 
expressed  the  cautious  circumspection  with  which  it  approaches 

160 


DARTMOUTH  COLLEGE  v.  WOODWARD.         161 

the  consideration  of  such  questions ;  and  has  declared  that,  in  no 
doubtful  case,  would  it  pronounce  a  legislative  act  to  be  contrary 
to  the  constitution.  But  the  American  people  have  said,  in  the 
constitution  of  the  United  States,  that  "no  State  shall  pass  any 
bill  of  attainder,  ex  post  facto  law,  or  law  impairing  the  obliga- 
tion of  contracts."  In  the  same  instrument  they  have  also  said, 
"that  the  judicial  power  shall  also  extend  to  all  cases  in  law 
and  equity  arising  under  the  constitution."  On  the  judges  of 
this  court,  then,  is  imposed  the  high  and  solemn  duty  of  protect- 
ing, from  even  legislative  violation,  those  contracts  which  the 
constitution  of  our  country  has  placed  beyond  legislative  control ; 
and,  however  irksome  the  task  may  be,  this  is  a  duty  from  which 
we  dare  not  shrink. 

The  title  of  the  plaintiffs  originates  in  a  charter  dated  the  13th 
day  of  December,  in  the  year  1769,  incorporating  twelve  persons 
therein  mentioned,  by  the  name  of  "The  Trustees  of  Dartmouth 
College,"  granting  to  them  and  their  successors  the  usual  cor- 
porate privileges  and  powers,  and  authorizing  the  trustees,  who 
are  to  govern  the  college,  to  fill  up  all  vacancies  which  may  be 
created  in  their  own  body. 

The  defendant  claims  under  three  acts  of  the  legislature  of 
New  Hampshire,  the  most  material  of  which  was  passed  on  the 
'JTth  of  June,  1816,  and  is  entitled  "An  act  to  amend  the  chart<  r, 
and  enlarge  and  improve  the  corporation  of  Dartmouth  College." 
Among  other  alterations  in  the  charter,  this  act  increases  the 
number  of  trustees  to  twenty-one,  gives  the  appointment  of  the 
additional  members  to  the  executive  of  the  State,  and  creates  a 
board  of  overseers,  with  power  to  inspect  and  control  the  most 
important  acts  of  the  trustees.  This  board  consists  of  twenty- 
five  persons.  The  president  of  the  senate,  the  speaker  of  the 
house  of  representatives  of  New  Hampshire,  and  the  governor 
and  lieutenant-governor  of  Vermont,  for  the  time  being,  are  to 
be  members  ex  officio.  The  board  is  to  be  completed  by  the  gov- 
ernor and  council  of  New  Hampshire,  who  are  also  empowered 
to  Mil  all  vacancies  which  may  occur.  The  acts  of  the  18th  and 
26th  of  December  are  supplemental  to  that  of  the  27th  of  June, 
and  an-  principally  intended  to  carry  that  act  into  effect. 

The  majority  of  the  trustees  of  the  college  have  refused  to 
accept  this  amended  charter,  and  have  brought  this  suit  for  the 
corporate  property,  which  is  in  possession  of  a  person  holding 
by  virtue  of  the  acts  which  have  been  stated. 

It  can  require  no  argument  to  prove  that  the  circumstances  of 
this  case  constitute  a  contract.  An  application  is  made  to  the 

c.  c.  L.-U 


162  CASES  ON  CONSTITUTIONAL  LAW. 

crown  for  a  charter  to  incorporate  a  religious  and  literary  insti- 
tution. In  the  application  it  is  stated  that  large  contributions 
have  been  made  for  the  object,  which  will  be  conferred  on  the 
corporation  as  soon  as  it  shall  be  created.  The  charter  is  granted, 
and  on  its  faith  the  property  is  conveyed.  Surely  in  this  trans- 
action every  ingredient  of  a  complete  and  legitimate  contract  is 
to  be  found. 

The  points  for  consideration  are, 

1.  Is  this  contract  protected  by  the  constitution  of  the  United 
States? 

2.  Is  it  impaired  by  the  acts  under  which  the  defendant  holds  ? 

1.  On  the  first  point  it  has  been  argued  that  the  word  "con- 
tract," in  its  broadest  sense,  would  comprehend  the  political  rela- 
tions between  the  government  and  its  citizens,  would  extend  to 
offices  held  within  a  State  for  state  purposes,  and  to  many  of 
those  laws  concerning  civil  institutions,  which  must  change  with 
circumstances,  and  be  modified  by  ordinary  legislation;  which 
deeply  concern  the  public,  and  which,  to  preserve  good  govern- 
ment, the  public  judgment  must  control.  That  even  marriage 
is  a  contract,  and  its  obligations  are  affected  by.the  laws  respect- 
ing divorces.  That  the  clause  in  the  constitution,  if  construed  in 
its  greatest  latitude,  would  prohibit  these  laws.  Taken  in  its 
broad,  unlimited  sense,  the  clause  would  be  an  unprofitable  and 
vexatious  interference  with  the  internal  concerns  of  a  State, 
would  unnecessarily  and  unwisely  embarrass  its  legislation,  and 
render  immutable  those  civil  institutions  which  are  established  for 
purposes  of  internal  government,  and  which,  to  subserve  those 
purposes,  ought  to  vary  with  varying  circumstances.  That  as  the 
framers  of  the  constitution  could  never  have  intended  to  insert 
in  that  instrument  a  provision  so  unnecessary,  so  mischievous, 
and  so  repugnant  to  its  general  spirit,  the  term  ' '  contract ' '  must 
be  understood  in  a  more  limited  sense.  That  it  must  be  under- 
stood as  intended  to  guard  against  a  power  of  at  least  doubtful 
utility,  the  abuse  of  which  had  been  extensively  felt,  and  to  re- 
strain the  legislature  in  future  from  violating  the  right  to  prop- 
erty. That  anterior  to  the  formation  of  the  constitution,  a  course 
of  legislation  had  prevailed  in  many,  if  not  in  all,  of  the  States, 
which  weakened  the  confidence  of  man  in  man,  and  embarrassed 
all  transactions  between  individuals,  by  dispensing  with  a  faith- 
ful performance  of  engagements.  To  correct  this  mischief,  by 
restraining  the  power  which  produced  it,  the  State  legislatures 
were  forbidden  ' '  to  pass  any  law  impairing  the  obligation  of  con- 
tracts," that  is,  of  contracts  respecting  property,  under  which 


DABTMOUTH  COLLEGE  v.  WOODWARD.         163 

some  individual  could  claim  a  right  to  something  beneficial  to 
him.s.-li';  and  that  since  the  clause  in  the  constitution  must  in 
construction  r«-c«-i\v  some  limitation,  it  may  be  confined,  and 
ought  to  be  confined,  to  cases  of  this  description ;  to  cases  within 
the  mischief  it  was  intended  to  remedy. 

The  general  correctness  of  these  observations  cannot  be  con- 
troverted. That  the  framers  of  the  constitution  did  not  intend 
to  restrain  the  States  in  the  regulation  of  their  civil  institutions, 
adopted  for  internal  government,  and  that  the  instrument  they 
have  given  us  is  not  to  be  so  construed,  may  be  admitted.  The 
provision  of  the  constitution  never  has  been  understood  to  em- 
brace other  contracts  than  those  which  respect  property  or  some 
object  of  value,  and  confer  rights  which  may  be  asserted  in  a 
court  of  justice.  It  has  never  been  understood  to  restrict  the 
general  right  of  the  legislature  to  legislate  on  the  subject  of 
divorces.  Those  acts  enable  some  tribunal,  not  to  impair  a  mar- 
riage contract,  but  to  liberate  one  of  the  parties  because  it  has 
been  broken  by  the  other.  When  any  State  legislature  shall  pass 
an  act  annulling  all  marriage  contracts,  or  allowing  either  party 
to  annul  it  without  the  consent  of  the  other,  it  will  be  time  enough 
to  inquire  whether  such  an  act  be  constitutional. 

The  parties  in  this  case  differ  less  on  general  principles,  less 
on  the  true  construction  of  the  constitution  in  the  abstract,  than 
on  the  application  of  those  principles  to  this  case,  and  on  the 
true  construction  of  the  charter  of  1769.  This  is  the  point  on 
which  the  cause  essentially  depends.  If  the  act  of  incorporation 
be  a  grant  of  political  power,  if  it  creates  a  civil  institution  to  be 
employed  in  the  administration  of  the  government,  or  if  the 
funds  of  the  college  be  public  property,  or  if  the  State  of  New 
Il.mipshiiv.  as  a  government,  be  alone  interested  in  its  transac- 
tions, the  subject  is  one  in  which  the  legislature  of  the  State 
may  act  according  to  its  own  judgment,  unrestrained  by  any  lim- 
itation of  its  power  imposed  by  the  constitution  of  the  United 
States. 

But  if  this  be  a  private  eleemosynary  institution,  endowed  with 
a  capacity  to  take  property  for  objects  unconnected  with  govern- 
ment, whose  funds  are  bestowed  by  individuals  on  the  faith  of 
the  charter;  if  the  donors  have  stipulated  for  the  future  disposi- 
tion and  management  of  those  funds  in  the  manner  prescribed 
by  themselves ;  there  may  be  more  difficulty  in  the  case,  although 
iii-it  li.-r  the  persons  who  have  made  these  stipulations,  nor  those 
for  whose  benefit  tln-y  w.-re  made,  should  be  parties  to  the  cause, 
Those  who  are  no  longer  interested  in  the  property  may  yet  retain 


164  CASES  ON  CONSTITUTIONAL  LAW. 

such  an  interest  in  the  preservation  of  their  own  arrangements 
as  to  have  a  right  to  insist  that  those  arrangements  shall  be  held 
sacred.  Or,  if  they  have  themselves  disappeared,  it  becomes  a 
subject  of  serious  and  anxious  inquiry,  whether  those  whom  they 
have  legally  empowered  to  represent  them  forever,  may  not  assert 
all  the  rights  which  they  possessed  while  in  being;  whether,  if 
they  be  without  personal  representatives  who  may  feel  injured 
by  a  violation  of  the  compact,  the  trustees  be  not  so  completely 
their  representatives  in  the  eye  of  the  law,  as  to  stand  in  their 
place,  not  only  as  respects  the  government  of  the  college,  but 
also  as  respects  the  maintenance  of  the  college  charter. 

It  becomes  then  the  duty  of  the  court  most  seriously  to  exam- 
ine this  charter,  and  to  ascertain  its  true  character.1  .  .  . 

From  this  review  of  the  charter,  it  appears  that  Dartmouth 
College  is  an  eleemosynary  institution,  incorporated  for  the  pur- 
pose of  perpetuating  the  application  of  the  bounty  of  the  donors 
to  the  specified  objects  of  that  bounty ;  that  its  trustees  or  gov- 
ernors were  originally  named  by  the  founder,  and  invested  with 
the  power  of  perpetuating  themselves ;  that  they  are  not  public 
officers,  nor  is  it  a  civil  institution,  participating  in  the  admin- 
istration of  government;  but  a  charity  school,  or  a  seminary  of 
education,  incorporated  for  the  preservation  of  its  property,  and 
the  perpetual  application  of  that  property  to  the  objects  of  its 
creation. 

Yet  a  question  remains  to  be  considered  of  more  real  difficulty, 
on  which  more  doubt  has  been  entertained  than  on  all  that  have 
been  discussed.  The  founders  of  the  college,  at  least  those  whose 
contributions  were  in  money,  have  parted  with  the  property  be- 

i  In  the  passages  here  omitted  occurs  Marshall 's  famous  description  of 
a  corporation :  "A  corporation  is  an  artificial  being,  invisible,  intangible, 
and  existing  only  in  contemplation  of  law.  Being  the  mere  creature  of  law, 
it  possesses  only  those  properties  which  the  charter  of  its  creation  confers 
upon  it,  either  expressly  or  as  incidental  to  its  very  existence.  These  are 
such  as  are  supposed  best  calculated  to  effect  the  object  for  which  it  was 
created.  Among  the  most  important  are  immortality,  and,  if  the  expres- 
sion may  be  allowed,  individuality;  properties,  by  which  a  perpetual  suc- 
cession of  many  persons  are  considered  as  the  same,  and  may  act  as  a  single 
individual.  They  enable  a  corporation  to  manage  its  own  affairs,  and  to 
hold  property  without  the  perplexing  intricacies,  the  hazardous  and  endless 
necessity,  of  perpetual  conveyances  for  the  purpose  of  transmitting  it 
from  hand  to  hand.  It  is  chiefly  for  the  purpose  of  clothing  bodies  of  men 
in  succession  with  these  qualities  and  capacities  that  corporations  were  in- 
vented and  are  in  use.  By  these  means,  a  perpetual  succession  of  individ- 
uals are  capable  of  acting  for  the  promotion  of  the  particular  object,  like 
one  immortal  being. ' ' 


DARTMOUTH  COLLEGE  v.  WOODWARD.          165 

stowed  upon  it,  and  their  representatives  have  no  interest  in  that 
property.  The  donors  of  land  are  equally  without  interest,  so 
long  as  the  corporation  shall  exist.  Could  they  be  found,  they 
are  unaffected  by  any  alteration  in  its  constitution,  and  probably 
regardless  of  its  form  or  even  of  its  existence.  The  students  are 
fluctuating,  and  no  individual  among  our  youth  has  a  vested  in- 
terest in  the  institution,  which  can  be  asserted  in  a  court  of  jus- 
tice. Neither  the  founders  of  the  college,  nor  the  youth  for  whose 
benefit  it  was  founded,  complain  of  the  alteration  made  in  its 
charter,  or  think  themselves  injured  by  it.  The  trustees  alone 
complajn,  and  the  trustees  have  no  beneficial  interest  to  be  pro- 
tected. Can  this  be  such  a  contract  as  the  constitution  intended 
to  withdraw  from  the  power  of  State  legislation?  Contracts,  the 
parties  to  which  have  a  vested  beneficial  interest,  and  those  only, 
it  has  been  said,  are  the  objects  about  which  the  constitution  is 
solicitous,  and  to  which  its  protection  is  extended. 

The  court  has  bestowed  on  this  argument  the  most  deliberate 
consideration,  and  the  result  will  be  stated.  Dr.  Wheelock,  act- 
ing for  himself  and  for  those  who,  at  his  solicitation,  had  made 
contributions  to  his  school,  applied  for  this  charter,  as  the  instru- 
ment which  should  enable  him  and  them  to  perpetuate  their 
beneficent  intention.  It  was  granted.  An  artificial,  immortal 
being  was  created  by  the  crown,  capable  of  receiving  and  distrib- 
uting forever,  according  to  the  will  of  the  donors,  the  donations 
which  should  be  made  to  it.  On  this  being,  the  contributions 
which  had  been  collected  were  immediately  bestowed.  These  gifts 
were  made,  not  indeed  to  make  a  profit  for  the  donors  or  their 
posterity,  but  for  something,  in  their  opinion,  of  inestimable 
value ;  for  something  which  they  deemed  a  full  .equivalent  for  the 
money  with  which  it  was  purchased.  The  consideration  for  which 
they  stipulated,  is  the  perpetual  application  of  the  fund  to  its 
object,  in  the  mode  prescribed  by  themselves.  Their  descendants 
may  take  no  interest  in  the  preservation  of  this  consideration. 
Hut  in  this  respect  their  descendants  are  not  their  representa- 
I,  They  are  represented  by  the  corporation.  The  corpora- 
tion is  the  assignee  of  their  rights,  stands  in  their  place,  and  dis- 
tributes their  bounty,  as  they  would  themselves  have  distributed 
it  had  they  been  immortal.  So  with  respect  to  the  students  who 
are  to  derive  learning  from  this  source.  The  corporation  is  a 
trustee  for  them  also.  Their  potential  rights,  which,  taken  dis- 
trihutively,  are  imperceptible,  amount  collectively  to  a  most  im- 
portant interest.  These  are,  in  the  aggregate,  to  be  exercised, 
asserted,  and  protected  by  the  corporation.  They  were  as  com- 


166  CASES  ON  CONSTITUTIONAL  LAW. 

pletely  out  of  the  donors,  at  the  instant  of  their  being  vested  in 
the  corporation,  and  as  incapable  of  being  asserted  by  the  stu- 
dents, as  at  present. 

According  to  the  theory  of  the  British  constitution,  their  par- 
liament is  omnipotent.  To  annul  corporate  rights  might  give  a 
shock  to  public  opinion,  which  that  government  has  chosen  to 
avoid ;  but  its  power  is  not  questioned.  Had  parliament,  imme- 
diately after  the  emanation  of  this  charter,  and  the  execution  of 
those  conveyances  which  followed  it,  annulled  the  instrument, 
so  that  the  living  donors  would  have  witnessed  the  disappoint- 
ment of  their  hopes,  the  perfidy  of  the  transaction  would  have 
been  universally  acknowledged.  Yet  then,  as  now,  the  donors 
would  have  had  no  interest  in  the  property ;  then,  as  now,  those 
who  might  be  students  would  have  had  no  rights  to  be  violated ; 
then,  as  now,  it  might  be  said  that  the  trustees,  in  whom  the 
rights  of  all  were  combined,  possessed  no  private,  individual, 
beneficial  interest  in  the  property  confided  to  their  protection. 
Yet  the  contract  would  at  that  time  have  been  deemed  sacred  by 
all.  What  has  since  occurred  to  strip  it  of  its  inviolability  ?  Cir- 
cumstances have  not  changed  it.  In  reason,  in  justice,  and  in 
law,  it  is  now  what  it  was  in  1769. 

This  is  plainly  a  contract  to  which  the  donors,  the  trustees,  and 
the  crown,  (to  whose  rights  and  obligations  New  Hampshire  suc- 
ceeds,) were  the  original  parties.  It  is  a  contract  made  on  a  valu- 
able consideration.  It  is  a  contract  for  the  security  and  disposi- 
tion of  property.  It  is  a  contract,  on  the  faith  of  which,  real  and 
personal  estate  has  been  conveyed  to  the  corporation.  It  is  then 
a  contract  within  the  letter  of  the  constitution,  and  within,  its 
spirit  also,  unless%the  fact  that  the  property  is  invested  by  the 
donors  in  trustees,  for  the  promotion  of  religion  and  education, 
for  the  benefit  of  persons  who  are  perpetually  changing,  though 
the  objects  remain  the  same,  shall  create  a  particular  exception, 
taking  this  case  out  of  the  prohibition  contained  in  the  constitu- 
tion. 

It  is  more  than  possible  that  the  preservation  of  rights  of  this 
description  was  not  particularly  in  the  view  of  the  framers  of 
the  constitution,  when  the  clause  under  consideration  was  intro- 
duced into  that  instrument.  It  is  probable  that  interferences  of 
more  frequent  recurrence,  to  which  the  temptation  was  stronger, 
and  of  which  the  mischief  was  more  extensive,  constituted  the 
great  motive  for  imposing  this  restriction  on  the  State  legisla- 
tures. But  although  a  particular  and  a  rare  case  may  not,  in 
itself,  be  of  sufficient  magnitude  to  induce  a  rule,  yet  it  must  be 


DARTMOUTH  COLLEGE  v.  WOODWARD.          167 

governed  by  the  rule,  when  established,  unless  some  plain  and 
strong  reason  for  excluding  it  can  be  given.  It  is  not  enough 
to  say,  that  this  particular  case  was  not  in  the  mind  of  the  con- 
vention, when  the  article  was  framed,  nor  of  the  American  people, 
when  it  was  adopted.  It  is  necessary  to  go  farther,  and  to  say 
that,  had  this  particular  fcase  been  suggested,  the  language  would 
have  been  so  varied  as  to  exclude  it,  or  it  would  have  been  made 
a  special  exception.  The  case,  being  within  the  words  of  the  rule, 
must  be  within  its  operation  likewise,  unless  there  be  something 
in  the  literal  construction  so  obviously  absurd  or  mischievous, 
or  repugnant  to  the  general  spirit  of  the  instrument,  as  to  justify 
those  who  expound  the  constitution  in  making  it  an  exception. 

On  what  safe  and  intelligible  ground  can, this  exception  stand? 
There  is  no  expression  in  the  constitution,  no  sentiment  delivered 
by  its  contemporaneous  expounders,  which  would  justify  us  in 
making  it.  In  the  absence  of  all  authority  of  this  kind,  is  there, 
in  tiie  nature  and  reason  of  the  case  itself,  that  which  would  sus- 
tain a  construction  of  the  constitution,  not  warranted  by  its 
words  ?  Are  contracts  of  this  description  of  a  character  to  excite 
so  little  interest  that  we  must  exclude  them  from  the  provisions 
of  the  constitution,  as  being  unworthy  of  the  attention  of  those 
who  framed  the  instrument?  Or  does  public  policy  so  imperi- 
ously demand  their  remaining  exposed  to  legislative  alteration 
as  to  compel  us,  or  rather  permit  us  to  say,  that  these  words, 
which  were  introduced  to  give  stability  to  contracts,  and  which, 
in  their  plain  import,  comprehend  this  contract,  must  yet  be  so 
construed  as  to  exclude  it? 

Almost  all  eleemosynary  corporations,  those  which  are  created 
for  the  promotion  of  religion,  of  charity,  or  of  education,  are  of 
the  same  character.  The  law  of  this  case  is  the  law  of  all.  In 
every  literary  or  charitable  institution,  unless  the  objects  of  the 
bounty  be  themselves  incorporated,  the  whole  legal  interest  is  in 
trustees,  and  can  be  asserted  only  by  them.  The  donors,  or  claim- 
ants of  the  bounty,  if  they  can  appear  in  court  at  all,  can  appear 
only  to  complain  of  the  trustees.  In  all  other  situations,  they 
are  identified  with,  and  personated  by,  the  trustees,  and  their 
rights  are  to  be  defended  and  maintained  by  them.  Religion, 
charity,  and  education  are,  in  the  law  of  England,  legatees  or 
donees,  capable  of  receiving  bequests  or  donations  in  this  form. 
They  appear  in  court,  and  claim  or  defend  by  the  corporation. 
Are' they  of  so  little  estimation  in  the  United  States,  that  con- 
tracts for  their  benefit  must  be  excluded  from  the  protection  of 
words  which,  in  their  natural  import,  include  them  ?  Or  do  such 


168  CASES  ON  CONSTITUTIONAL  LAW. 

contracts  so  necessarily  require  new  modelling,  by  the  authority 
of  the  legislature,  that  the  ordinary  rules  of  construction  must  be 
disregarded  in  order  to  leave  them  exposed  to  legislative  altera- 
tion? 

All  feel  that  these  objects  are  not  deemed  unimportant  in  the 
United  States.  The  interest  which  thi*  case  has  excited  proves 
that  they  are  not.  The  framers  of  the  constitution  did  not  deem 
them  unworthy  of  its  care  and  protection.  They  have,  though 
in  a  different  mode,  manifested  their  respect  for  science  by  re- 
serving to  the  government  of  the  Union  the  power  "to  promote 
the  progress  of  science  and  useful  arts,  by  securing  for  limited 
times,  to  authors  and  inventors,  the  exclusive  right  to  their  re- 
spective writings  and  discoveries. ' '  They  have  so  far  withdrawn 
science  and  the  useful  arts  from  the  action  of  the  State  govern- 
ments. Why,  then,  should  they  be  supposed  so  regardless  of  con- 
tracts made  for  the  advancement  of  literature,  as  to  intend  to 
exclude  them  from  provisions  made  for  the  security  of  ordinary 
contracts  between  man  and  man  ?  No  reason  for  making  this  sup- 
position is  perceived. 

If  the  insignificance  of  the  object  does  not  require  that  we 
should  exclude  contracts  respecting  it  from  the  protection  of  the 
constitution,  neither,  as  we  conceive,  is  the  policy  of  leaving 
them  subject  to  legislative  alteration,  so  apparent,  as  to  require  a 
forced  construction  of  that  instrument  in  order  to  effect  it.  These 
eleemosynary  institutions  do  not  fill  the  place  which  would  other- 
wise be  occupied  by  government,  but  that  which  would  otherwise 
remain  vacant.  They  are  complete  acquisitions  to  literature. 
They  are  donations  to  education;  donations  which  any  govern- 
ment must  be  disposed  rather  to  encourage  than  to  discounte- 
nance. It  requires  no  very  critical  examination  of  the  human 
mind,  to  enable  us  to  determine,  that  one  great  inducement  to 
these  gifts  is  the  conviction  felt  by  the  giver,  that  the  disposition 
he  makes  of  them  is  immutable.  It  is  probable,  that  no  man  ever 
was,  and  that  no  man  ever  will  be,  the  founder  of  a  college,  be- 
lieving at  the  time  that  an  act  of  incorporation  constitutes  no 
security  for  the  institution ;  believing,  that  it  is  immediately  to 
be  deemed  a  public  institution,  whose  funds  are  to  be  governed 
and  applied,  not  by  the  will  of  the  donor,  but  by  the  will  of  the 
legislature.  All  such  gifts  are  made  in  the  pleasing,  perhaps 
delusive  hope,  that  the  charity  will  flow  forever  in  the  channel 
which  the  givers  have  marked  out  for  it.  If  every  man  finds  in 
his  own  bosom  strong  evidence  of  the  universality  of  this  senti- 
ment, there  can  be  but  little  reason  to  imagine  that  the  framers 


DARTMolTH  COLLEGE  v.  WOODWARD.          169 

of  our  constitution  were  strangers  to  it,  and  that,  feeling  the 
and  policy  of  giving  permanence  and  security  to  eon- 
^.  of  withdrawing  them  from  the  influence  of  legislative  bod- 
ies, whose  fluctuating  policy  and  repeated  interferences  pro- 
duced the  most  perplexing  and  injurious  embarrassments,  they 
still  deemed  it  necessary  to  leave  these  contracts  subject  to  those 
interferences.  The  motives  for  such  an  exception  must  be  very 
powerful,  to  justify  the  construction  which  makes  it.  ... 

Tlie  opinion  of  the  court,  after  mature  deliberation,  is,  that  this 
is  a  contract,  the  obligation  of  which  cannot  be  impaired,  without 
violating  the  constitution  of  the  United  States.  This  opinion 
appears  to  us  to  be  equally  supported  by  reason,  and  by  the  for- 
mer decisions  of  this  court. 

2.  We  next  proceed  .to  the  inquiry,  whether  its  obligation  has 
been  impaired  by  those  acts  of  the  legislature  of  New  Hamp- 
shire, to  which  the  special  verdict  refers.  .  .  . 

On  the  effect  of  this  law,  two  opinions  cannot  be  entertained. 
Between  acting  directly,  and  acting  through  the  agency  of  trus- 
tees and  overseers,  no  essentiardifference  is  perceived.  The  whole 
power  of  governing  the  college  is  transferred  from  trustees,  ap- 
pointed according  to  the  will  of  the  founder,  expressed  in  the 
charter,  to  the  executive  of  New  Hampshire.  The  management 
and  application  of  the  funds  of  this  eleemosynary  institution, 
\\hich  are  placed  by  the  donors  in  the  hands  of  trustees  named 
in  the  charter,  and  empowered  to  perpetuate  themselves,  are 
placed  by  this  act  under  the  control  of  the  government  of  the 
State.  The  will  of  the  State  is  substituted  for  the  will  of  the 
donors,  in  every  essential  operation  of  the  college.  This  is  not  an 
immaterial  change.  The  founders  of  the  college  contracted,  not 
merely  for  the  perpetual  application  of  the  funds  which  they 
gave,  to  the  objects  for  which  those  funds  were  given ;  they  con- 
tracted also,  to  secure  that  application  by  the  constitution  of  the 
corporation.  They  contracted  for  a  system,  which  should,  as  far 
as  human  foresight  can  provide,  retain  forever  the  government 
of  the  literary  institution  they  had  formed,  in  the  hands  of  per- 
sons approved  by  themselves.  This  system  is  totally  changed. 
The  charter  of  1769  exists  no  longer.  It  is  reorganized ;  and  re- 
organized in  such  a  manner,  aa  to  convert  a  literary  institution, 
molded  according  to  the  will  of  its  founders,  and  placed  under 
the  control  of  private  literary  men,  into  a  machine  entirely  sub- 
servient to  the  will  of  government.  This  may  be  for  the  advan- 
tage of  this  college  in  particular,  and  may  bo  for  the  advantage 
of  literature  in  general;  but  it  is  not  according  to  the  will  of 


170  CASES  ON  CONSTITUTIONAL  LAW. 

the  donors,  and  is  subversive  of  that  contract,  on  the  faith  of 
which  their  property  was  given.     .     .     . 

It  results  from  this  opinion,  that  the  acts  of  the  legislature  of 
New  Hampshire,  which  are  stated  in  the  special  verdict  found  in 
this  cause,  are  repugnant  to  the  constitution  of  the  United  States ; 
and  that  the  judgment  on  this  special  verdict  ought  to  have  been 
for  the  plaintiffs.  The  judgment  of  the  state  court  must,  there- 
fore, be  reversed. 

[MR.  JUSTICE  WASHINGTON  and  MB.  JUSTICE  STORY  delivered 
concurring  opinions.  MR.  JUSTICE  JOHNSON  concurred  for  the 
reasons  stated  by  the  Chief  Justice.  MR.  JUSTICE  LIVINGSTON 
concurred  for  the  reasons  stated  by  the  Chief  Justice  and  by 
Justices  Washington  and  Story.  MR.  JUSTICE  DUVALL  dissented.] 

NOTE. — No  other  decision  of  the  Supreme  Court,  except  possibly  that 
in  the  Dred  Scott  case,  has  provoked  so  much  criticism  as  has  that  in  the 
Dartmouth  College  case,  and  yet  Chief  Justice  Waite  said  of  it,  ' '  The  doc- 
trines of  Trustees  of  Dartmouth  College  v.  Woodward  announced  by  this 
court  more  than  sixty  years  ago  have  become  so  imbedded  in  the  jurispru- 
dence of  the  United  States  as  to  make  them  to  all  intents  and  purposes  a 
part  of  the  Constitution  itself."  Stone  v.  Mississippi  (1879),  101  U.  S. 
814,  816.  The  point  of  view  of  some  of  the  opponents  of  the  decision  is 
set  forth  in  these  words  of  a  distinguished  jurist: 

It  is  under  the  protection  of  the  decision  in  the  Dartmouth 
College  Case  that  the  most  enormous  and  threatening  powers  in 
our  country  have  been  created;  some  of  the  great  and  wealthy  cor- 
porations actually  having  greater  influence  in  the  country  at  large, 
and  upon  the  legislation  of  the  country,  than  the  States  to  which 
they  owe  their  corporate  existence.  Every  privilege  granted  or 
right  conferred — no  matter  by  what  means  or  on  what  pretence — 
being  made  inviolable  by  the  Constitution,  the  government  is  fre- 
quently found  stripped  of  its  authority  in  very  important  partic- 
ulars, by  unwise,  careless,  or  corrupt  legislation;  and  a  clause  of 
the  Federal  Constitution,  whose  purpose  was  to  preclude  the  re- 
pudiation of  debts  and  just  contracts,  protects  and  perpetuates  the 
evil. 

Cooley,  Constitutional  Limitations  (6  ed.),  335n. 

The  evils  of  which  Chief  Justice  Cooley  speaks  have  been  greatly  miti- 
gated by  the  almost  universal  practice  of  reserving  in  every  charter  granted 
the  right  of  amendment  and  repeal,  and  also  by  the  court's  insistence  upon 
clear  proof  of  the  actual  existence  of  a  contract  with  the  State.  Miller, 
Lectures  on  the  Constitution,  393.  Many  charters  have  also  been  limited 
by  the  police  power  held  to  be  inherent  in  the  States  and  which  they  can 
not  grant  away.  Northwestern  Fertilizer  Co.  v.  Hyde  Park  (1878),  97 
U.  S.  659.  The  doctrine  of  the  principal  case  does  not  apply  to  the  charters 
of  public  corporations.  Laramie  County  v.  Albany  County  (1.875),  92 
U.  S.  307. 


CHARLES  RIVER  BRIDGE  v.  WARREN  BRIDGE.  171 

The  Dartmouth  College  ease  has  given  rise  to  a  voluminous  literature. 
Among  the  most  important  discusions  of  it  are  Shirley,  The  Dartmouth 
College  Cause*  ("valuable  but  ill  digested,"  J.  B.  Thayer) ;  Chief  Justice 
Doe,  "A  New  View  of  the  Dartmouth  College  Case,"  Harvard  Law  Review, 
VI,  161,  213;  Lodge,  Daniel  Webster  (a  good  history  of  the  ease  by  an 
eminent  statesman);  Wheeler,  Daniel  Webster,  Expounder  of  the  Consti- 
tution (criticism  by  a  distinguished  lawyer). 

As  to  what  contracts  are  protected  by  the  Federal  Constitution  against 
impairment  by  the  States  see  Church  v.  Kelsey  (1887),  121  U.  8,  282  (a 
State  constitution) ;  Fletcher  v.  Peck  (1810),  6  Cranch,  87  (a  convey- 
ance) ;  State  of  New  Jersey  v.  Wilson  (1812),  7  Cranch,  164;  Providence 
Bank  v.  Billings  (1830),  4  Peters,  514;  Piqua  Branch  of  State  Bank  of 
Ohio  v.  Knoop  (1853),  16  Howard,  369  (exemption  from  taxation);  Green 
T.  Biddle  (1823),  8  Wheaton,  1  (contract  between  States  for  the  benefit  of 
individuals);  Maynard  v.  Hill  (1888),  125  U.  S.  190  (contract  of  mar- 
riage); The  Binghampton  Bridge  (1865),  3  Wallace,  51;  New  Orleans 
Water  Co.  v.  Elvers  (1885),  115  U.  S.  674;  Vicksburg  v.  Vicksburg  Water 
Co.  (1906),  202  U.  8.  453  (exclusive  franchises) ;  Los  Angeles  T.  City  Water 
Co.  (1900),  177  U.  8.  558  (contracts  as  to  rates  of  public  service  com- 
panies); Louisiana  v.  New  Orleans  (1883),  109  U.  8.  285  (judgment  for 
damages  collectible  in  an  action  of  contract) ;  Illinois  Central  By.  v.  Illi- 
nois (1892),  146  U.  S.  387  (how  far  governmental  powers  can  be  made  the 
subject  of  irrepealable  contracts). 


SECTION  2.    THE  CONSTRUCTION  OP  GRANTS  FROM  A  STATE. 

THE  PROPRIETORS  OF  THE  CHARLES  RIVER  BRIDGE 

v.  THE  PROPRIETORS  OP  THE  WARREN 

BRIDGE  ET  AL. 

SUPREHK  COURT  or  THE  UNITED  STATES.    1837. 
11  Peters,  420;  9  Lawyers'  Ed.  773. 

Error  to  the  supreme  judicial  court  of  the  commonwealth  of 
Massachusetts.  .  .  . 

[In  1650  the  legislature  of  Massachusetts  granted  to  the  Presi- 
dent of  Harvard  College  "the  liberty  and  power"  to  dispose  of 
the  ferry  over  the  Charles  River  from  Charlestown  to  Boston, 
and  under  this  grant  Harvard  College  received  the  profits  of  this 
tVrry  until  1785,  when  the  legislature  incorporated  "The  Pro- 
prietors of  the  Charles  River  Bridge,"  and  authorized  the  com- 
pany to  construct  a  bridge  at  the  place  where  the  ferry  then  was. 
Provision  was  made  for  compensating  Harvard  College  for  the 
impairment  of  the  value  of  its  ferry  franchise.  In  1828  the  legis- 
lature incorporated  a  company  by  the  name  of  "The  Proprietors 
of  the  Warren  Bridge,"  and  authorized  it  to  construct  another 


172  CASES  ON  CONSTITUTIONAL  LAW. 

bridge  so  near  to  the  Charles  River  bridge  that  in  Charlestown 
the  termini  of  two  bridges  would  be  only  sixteen  rods  apart  and 
in  Boston  about  fifty  rods  apart.  The  Charles  River  Bridge  Com- 
pany then  sought  to  enjoin  the  construction  of  the  Warren  bridge 
on  the  ground  that  the  act  for  the  erection  of  the  Warren  bridge 
impaired  the  obligation  of  the  contract  between  the  petitioners 
and  the  Commonwealth  of  Massachusetts.] 

TANEY,  C.  J.,  delivered  the  opinion  of  the  court.     .     .     . 

The  plaintiffs  in  error  insist,  mainly,  upon  two  grounds: 
1.  That  by  virtue  of  the  grant  of  1650,  Harvard  College  was 
entitled,  in  perpetuity,  to  the  right  of  keeping  a  ferry  between 
Charlestown  and  Boston ;  that  this  right  was  exclusive ;  and  that 
the  legislature  had  not  the  power  to  establish  another  ferry  on 
the  same  line  of  travel,  because  it  would  infringe  the  rights  of 
the  college ;  and  that  these  rights,  upon  the  erection  of  the  bridge 
in  the  place  of  the  ferry,  under  the  charter  of  1785,  were  trans- 
ferred to,  and  became  vested  in  "the  proprietors  of  the  Charles 
River  Bri'dge;"  and  that  under,  and  by  virtue  of  this  transfer 
of  the  ferry  right,  the  rights  of  the  bridge  company  were  as 
exclusive  in  that  line  of  travel,  as  the  rights  of  the  ferry.  2.  That 
independently  of  the  ferry  right,  the  acts  of  the  legislature  of 
Massachusetts  of  1785,  and  1792,  by  their  construction,  nec- 
essarily implied  that  the  legislature  would  not  authorize  another 
bridge,  and  especially  a  free  one,  by  the  side  of  this,  and  placed 
in  the  same  line  of  travel,  whereby  the  franchise  granted  to  the 
"Proprietors  of  the  Charles  River  Bridge''  should  be  rendered  of 
no  value;  and  the  plaintiffs  in  error  contend  that  the  grant  of 
the  ferry  to  the  college,  and  of  the  charter  to  the  proprietors  of 
the  bridge,  are  both  contracts  on  the  part  of  the  State ;  and  that' 
the  law  authorizing  the  erection  of  the  Warren  Bridge,  in  1828, 
impairs  the  obligation  of  one  or  both  of  these  contracts.  .  .  . 

This  brings  us  to  the  act  of  the  legislature  of  Massachusetts, 
of  1785,  by  which  the  plaintiffs  were  incorporated  by  the  name 
of  ' '  The  Proprietors  of  the  Charles  River  Bridge ; ' '  and  it  is  here, 
and  in  the  law  of  1792,  prolonging  their  charter,  that  we  must 
look  for  the  extent  and  nature  of  the  franchise  conferred  upon 
the  plaintiffs. 

Much  has  been  said  in  the  argument,  of  the  principles  of  con- 
struction by  which  this  law  is  to  be  expounded,  and  what  under- 
takings, on  the  part  of  the  State,  may  be  implied.  The  court 
think  there  can  be  no  serious  difficulty  on  that  head.  It  is  the 


CHARLES  RIVER  BRIDGE  v.  WARREN  BRIDGE.  173 

grant  of  certain  franchises  by  the  public  to  a  private  corporation, 
and  in  a  matter  where  the  public  interest  is  concerned.  The  rule 
of  construction  in  such  cases  is  well  settled,  both  in  England,  and 
by  the  decision  of  our  own  tribunals.  In  2  Barn.  &  Adol.  793, 
in  the  case  of  the  proprietors  of  the  Stourbridge  Canal  v.  Whee- 
ley  and  others,  the  court  say,  "The  canal  having  been  made  under 
an  act  of  parliament,  the  rights  of  the  plaintiffs  are  derived  en- 
tirely from  that  act.  This,  like  many  other  cases,  is  a  bargain 
between  a  company  of  adventurers  and  the  public,  the  terms  of 
which  are  expressed  in  the  statute ;  and  the  rule  of  construction, 
in  all  such  cases,  is  now  fully  established  to  be  this;  that  any 
ambiguity  in  the  terms  of  the  contract  must  operate  against  the 
adventurers,  and  in  favor  of  the  public,  and  the  plaintiffs  can 
claim  nothing  that  is  not  clearly  given  them  by  the  act"  And 
the  doctrine  thus  laid  down  is  abundantly  sustained  by  the  au- 
thorities referred  to  in  this  decision.  The  case  itself  was  as  strong 
a  one  as  could  well  be  imagined  for  giving  to  the  canal  company, 
by  implication,  a  right  to  the  tolls  they  demanded.  Their  canal 
had  been  used  by  the  defendants,  to  a  very  considerable  extent, 
in  transporting  large  quantities  of  coal.  The  rights  of  all  per- 
sons to  navigate  the  canal  were  expressly  secured  by  the  act  of 
parliament;  so  that  the  company  could  not  prevent  them  from 
using  it,  and  the  toll  demanded  was  admitted  to  be  reasonable. 
Yet,  as  they  only  used  one  of  the  levels  of  the  canal,  and  did  not 
pass  through  the  locks;  and  the  statute,  in  giving  the  right  to 
exact  toll,  had  given  it  for  articles  which  passed  "through  any 
one  or  more*  of  the  locks,"  and  had  said  nothing  as  to  toll  for 
navigating  one  of  the  levels ;  the  court  held  that  the  right  to  de- 
mand toll,  in  the  latter  case,  could  not  be  implied,  and  that  the 
company  were  not  entitled  to  recover  it.  This  was  a  fair  case 
for  an  equitable  construction  of  the  act  of  incorporation,  and  for 
an  implied  grant;  if  such  a  rule  of  construction  could  ever  be 
permitted  in  a  law  of  that  description.  For  the  canal  had  been 
made  at  the  expense  of  the  company ;  the  defendants  had  availed 
themselves  of  the  fruits  of  their  labors,  and  used  the  canal  fn-.-ly 
and  extensively  for  their  own  profit  Still  the  right  to  exact  t"ll 
could  not  be  implied,  because  such  a  privilege  was  not  fouiul  in 
the  charter. 

Borrowing,  as  we  have  done,  our  system  of  jurisprudence  from 
the  English-law;  and  having  adopted,  in  every  other  case,  rivil 
and  criminal,  its  rules  for  the  construction  of  statutes;  is  thm> 
anything  in  our  local  situation,  or  in  the  nature  of  our  political 
institutions,  which  should  lead  us  to  depart  from  the  principle 


174  CASES  ON  CONSTITUTIONAL  LAW. 

where  corporations  are  concerned?  Are  we  to  apply  to  acts  of 
incorporation  a  rule  of  construction  differing  from  that  of  the 
English  law,  and,  by  implication,  make  the  terms  of  a  charter  in 
one  of  the  States,  more  unfavorable  to  the  public,  than  upon  an 
act  of  parliament,  framed  in  the  same  words,  would  be  sanc- 
tioned in  an  English  court?  Can  any  good  reason  be  assigned 
for  excepting  this  particular  class  of  cases  from  the  operation 
of  the  general  principle,  and  for  introducing  a  new  and  adverse 
rule  of  construction  in  favor  of  corporations,  while  we  adopt  and 
adhere  to  the  rules  of  construction  known  to  the  English  com- 
mon law,  in  every  other  case,  without  exception  ?  We  think  not ; 
and  it  would  present  a  singular  spectacle,  if,  while  the  courts  in 
England  are  restraining,  within  the  strictest  limits,  the  spirit  of 
monopoly,  and  exclusive  privileges  in  nature  of  monopolies,  and 
confining  corporations  to  the  privileges  plainly  given  to  them 
in  their  charter,  the  courts  of  this  country  should  be  found  en- 
larging these  privileges  by  implication ;  and  construing  a  statute 
more  unfavorably  to  the  public,  and  to  the  rights  of  4he  com- 
munity, than  would  be  done  in  a  like  case  in  an  English  court 
of  justice.  .  .  . 

Adopting  the  rule  of  construction  above  stated  as  the  settled 
one,  we  proceed  to  apply  it  to  the  charter  of  1785  to  the  propri- 
etors of  the  Charles  Eiver  Bridge.  This  act  of  incorporation  is 
in  the  usual  form,  and  the  privileges  such  as  are  commonly  given 
to  corporations  of  that  kind.  It  confers  on  them  the  ordinary 
faculties  of  a  corporation,  for  the  purpose  of  building  the  bridge ; 
and  establishes  certain  rates  of  toll,  which  the  eompany  are 
authorized  to  take.  This  is  the  whole  grant.  There  is  no  exclu- 
sive privilege  given  to  them  over  the  waters  of  Charles  Kiver 
above  or  below  their  bridge.  No  right  to  erect  another  bridge 
themselves,  nor  to  prevent  other  persons  from  erecting  one.  No 
engagement  from  the  State  that  another  shall  not  be  erected; 
and  no  undertaking  not  to  sanction  competition,  nor  to  make  im- 
provements that  may  diminish  the  amount  of  its  income.  Upon 
all  these  subjects  the  charter  is  silent ;  and  nothing  is  said  in  it 
about  a  line  of  travel,  so  much  insisted  on  in  the  argument,  in 
which  they  are  to  have  exclusive  privileges.  No  words  are  used 
from  which  an  intention  to  grant  any  of  these  rights  can  be 
inferred.  If  the  plaintiff  is  entitled  to  them,  it  must  be  implied, 
simply  from  the  nature  of  the  grant,  and  cannot  be  inferred  from 
the  words  by  which  the  grant  is  made. 

The  relative  position  of  the  Warren  Bridge  has  already  been 
described.  It  does  not  interrupt  the  passage  over  the  Charles 


U1AKI.K.S  RIVER  BRIDGE  v.  WARREN  BRIDGE.  175 

River  Bridge,  nor  make  the  way  to  it  or  from  it  less  convenient. 
None  of  the  faculties  or  franchises  granted  to  that  corporation 
have  been  revoked  by  the  legislature;  and  its  right  to  take  the 
tolls  granted  by  the  charter  remains  unaltered.  In  short,  all  the 
franchises  and  rights  of  property  enumerated  in  the  charter, 
and  there  mentioned  to  have  been  granted  to  it,  remain  unim- 
paired. But  its  income  is  destroyed  by  the  "Warren  Bridge; 
which,  being  free,  draws  off  the  passengers  and  property  which 
would  have  gone  over  it,  and  renders  their  franchise  of  no  value. 
This  is  the  gist  of  the  complaint.  For  it  is  not  pretended  that 
the  erection  of  the  Warren  Bridge  would  have  done  them  any 
injury,  or  in  any  degree  affected  their  right  of  property,  if  it  had 
not  diminished  the  amount  of  their  tolls.  In  order  then  to  entitle 
themselves  to  relief,  it  is  necessary  to  show  that  the  legislature 
contracted  not  to  do  the  act  of  which  they  complain;  and  that 
they  impaired,  or,  in  other  words,  violated  that  contract  by  the 
erection  of  the  Warren  Bridge. 

The  inquiry  then  is,  Does  the  charter  contain  such  a  contract 
on  the  part  of  the  State?  Is  there  any  such  stipulation  to  be 
found  in  that  instrument!  It  must  be  admitted  on  all  hands, 
that  there  is  none, — no  words  that  even  relate  to  another  bridge, 
or  to  the  diminution  of  their  tolls,  or  to  the  line  of  travel.  If  a 
contract  on  that  subject  can  be  gathered  from  the  charter,  it  must 
be  by 'implication,  and  cannot  be  found  in  the  words  used.  Can 
such  an  agreement  be  implied?  The  rule  of  construction  before 
stated  is  an  answer  to  the  question.  In  charters  of  this  descrip- 
tion, no  rights  are  taken  from  the  public,  or  given  to  the  cor- 
poration, beyond  those  which  the  words  of  the  charter,  by  their 
natural  and  proper  construction,  purport  to  convey.  There  are 
no  words  which  import  such  a  contract  as  the  plaintiffs  in  error 
contend  for,  and  none  can  be  implied ;  and  the  same  answer  must 
be  given  to  them  that  was  given  by  this  court  to  the  Providence 
Bank.  4  Pet.  514.  The  whole  community  are  interested  in  this 
inquiry,  and  they  have  a  right  to  require  that  the  power  of  pro- 
moting their  comfort  and  convenience,  and  of  advancing  the 
public  prosperity  by  providing  safe,  convenient,  and  cheap  ways 
for  the  transportation  of  produce  and  the  purposes  of  travel, 
shall  not  be  construed  to  have  been  surrendered  or  diminished 
by  the  State,  unless  it  shall  appear  by  plain  words  that  it  was 
intended  to  be  done.  .  .  . 

V  Indeed,  the  practice  and  usage  of  almost  every  State  in  the 
Union,  old  enough  to  have  commenced  the  work  of  internal  im- 
provement, is  opposed  to  the  doctrine  contended  for  on  the  part 


176  CASES  ON  CONSTITUTIONAL  LAW. 

of  the  plaintiffs  in  error.  Turnpike  roads  have  been  made  in  suc- 
cession, on  the  same  line  of  travel ;  the  later  ones  interfering  ma- 
terially with  the  profits  of  the  first.  These  corporations  have,  in 
some  instances,  been  utterly  ruined  by  the  introduction  of  newer 
and  better  modes  of  transportation  and  travelling.  In  some  cases, 
railroads  have  rendered  the  turapike  roads  on  the  same  line  of 
travel  so  entirely  useless,  that  the  franchise  of  the  turnpike  cor- 
poratiqn  is  not  worth  preserving.  Yet  in  none  of  these  cases 
have  the  corporations  supposed  that  their  privileges  were  invaded, 
or  any  contract  violated  on  the  part  of  the  State.  Amid  the  mul- 
titude of  cases  which  have  occurred,  and  have  been  daily  occur- 
ring for  the  last  forty  or  fifty  years,  this  is  the  first  instance  in 
which  such  an  implied  contract  has  been  contended  for,  and  this 
court  called  upon  to  infer  it  from  an  ordinary  act  of  incorpora- 
tion, containing  nothing  more  than  the  usual  stipulations  and 
provisions  to  be  found  in  every  such  law.  The  absence  of  any 
such  controversy,  when  there  must  have  been  so  many  occasions 
to  give  rise  to  it,  proves  that  neither  States,  nor  individuals,  nor 
corporations,  ever  imagined  that  such  a  contract  could  be  implied 
from  such  charters.  It  shows  that  the  men  who  voted  for  these 
laws  never  imagined  that  they  were  forming  such  a  contract; 
and  if  we  maintain  that  they  have  made  it,  we  must  create  it  by 
a  legal  fiction,  in  opposition  to  the  truth  of  the  fact,  and  the 
obvious  intention  of  the  party.  We  cannot  deal  thus  with  the 
rights  reserved  to  the  States,  and  by  legal  intendments  and  mere 
technical  reasoning,  take  away  from  them  any  portion  of  that 
power  over  their  own  internal  police  and  improvement,  which  is 
so  necessary  to  their  well-being  and  prosperity. 

And  what  would  be  the  fruits  of  this  doctrine  of  implied  con- 
tracts on  the  part  of  the  States,  and  of  property  in  a  line  of 
travel  by  a  corporation,  if  it  should  now  be  sanctioned  by  this 
court  ?  To  what  results  would  it  lead  us  ?  If  it  is  to  be  found 
in  the  charter  to  this  bridge,  the  same  process  of  reasoning  must 
discover  it,  in  the  various  acts  which  have  been  passed,  within 
the  last  forty  years,  for  turnpike  companies.  And  what  is  to  be 
the  extent  of  the  privileges  of  exclusion  on  the  different  sides  of 
the  road?  The  counsel  who  have  so -ably  argued  this  case  have 
not  attempted  to  define  it  by  any  certain  boundaries.  How  far 
must  the  new  improvement  be  distant  from  the  old  one?  How 
near  may  you  approach  without  invading  its  rights  in  the  privi- 
leged line  ?  If  this  court  should  establish  the  principles  now  con- 
tended for,  what  is  to  become  of  the  numerous  railroads  estab- 
lished on  the  same  line  of  travel  with  turnpike  companies;  and 


CHARLES  RIVER  BRIDGE  v.  WARREN  BRIDGE.  177 

which  have  rendered  the  franchises  of  the  turnpike  corporations 
of  no  value!  Let  it  once  be  understood  that  such  charters  carry 
with  them  these  implied  contracts,  and  give  this  unknown  and 
undefined  property  in  a  line  of  travelling,  and  you  will  soon  find 
the  old  turnpike  corporations  awakening  from  their  sleep  and 
calling  upon  this  court  to  put  down  the  improvements  which  have 
taken  their  place.  The  millions  of  property  which  have  been  in- 
vested in  railroads  and  canals,  upon  lines  of  travel  which  had 
been  before  occupied  by  turnpike  corporations,  will  be  put  in 
jeopardy.  We  shall  be  thrown  back  to  the  improvements  of  the 
last  century,  and  obliged  to  stand  still,  until  the  claims  of  the 
old  turnpike  corporations  shall  be  satisfied,  and  they  shall  con- 
sent to  permit  these  States  to  avail  themselves  of  the  lights  of 
modern  science,  and  to  partake  of  the  benefit  of  those  improve- 
ments which  are  now  adding  to  the  wealth  and  prosperity,  and 
the  convenience  and  comfort,  of  every  other  part  of  the  civilized 
world.  Nor  is  this  all.  This  court  will  find  itself  compelled  to 
fix,  by  some  arbitrary  rule,  the  width  of  this  new  kind  of  prop- 
erty in  a  line  of  travel ;  for  if  such  a  right  of  property  exists,  we 
have  no  lights  to  guide  us  in  marking  out  its  extent,  unless,  in- 
deed, we  resort  to  the  old  feudal  grants,  and  to  the  exclusive 
rights  of  ferries,  by  prescription,  between  towns;  and  are  pre- 
pared to  decide  that  when  a  turnpike  road  from  one  town  to  an- 
other had  been  made,  no  railroad  or  canal,  between  these  two 
points,  could  afterwards  be  established.  This  court  are  not  pre- 
pared to  sanction  principles  which  must  lead  to  such  results. 

The  judgment  of  the  supreme  judicial  court  of  the  common- 
wealth of  Massachusetts,  dismissing  the  plaintiffs'  bill,  must 
therefore,  be  affirmed,  unth  costs. 

[Ma.  JUSTICE  McLEAN  delivered  an  opinion  in  which  he  argued 
that  the  case  should  be  dismissed  for  want  of  jurisdiction.  MB. 
JUSTICE  STOBY  delivered  a  dissenting  opinion,  in  which  MB.  JUS- 
TICE THOMPSON  concurred.] 

NOTE.— For  an  excellent  history  of  the  principal  case,  with  criticism 
of  the  decision  by  Webster,  Kent  and  other  eminent  lawyers  of  the  d»yf 
see  Warren,  History  of  the  Harvard  Law  School,  I,  ch.  24. 

For  examples  of  the  construction  of  public  grants,  see  Skaneateles  Water 
Works  Co.  v.  Skaneateles  (1902),  184  U.  8.  354;  Joplin  v.  Southwest  Mis- 
souri  Light  Co.  (1903),  191  U.  8.  150  (city  having  granted  a  franchise  to 
a  private  company  constructed  water  and  light  works  of  its  own) ;  Rail- 
road Commission  Cases  (1886),  116  U.  8.  307;  Owennboro  v.  Owensboro 
Waterworks  Co.  (1903),  191  U.  8.  358;  Southern  Pacific  Co.  v.  Campbell 

E.  e  L.-II 


178  CASES  ON  CONSTITUTIONAL  LAW. 

(1913),  230  U.  S.  537  (State  or  municipality  fixed  the  charges  of  public 
service  companies  authorized  to  determine  their  charges) ;  Jetton  v.  Uni- 
versity of  the  South  (1908),  208  U.  S.  489  (taxation  of  leasehold  interests 
in  lands  exempt  from  taxation) ;  Picard  v.  East  Tennessee,  Va.  &  Ga.  Ey. 
(1889),  130  U.  S.  637;  Norfolk  &  Western  Ey.  v.  Pendleton  (1895),  156 
U.  S.  667;  Eochester  Eailway  Co.  v.  Eochester  (1907),  205  U.  S.  236 
(property  exempt  from  taxation  when  transferred  to  a  new  owner) ;  but 
compare  Choate  v.  Trapp  (1912),  224  U.  S.  665  (liberal  construction  of 
tax  exemptions  of  Indians). 


SECTION  3.    WHAT  is  AN  IMPAIRMENT  OF  THE  OBLI- 
GATION OF  A  CONTRACT. 

STURGES  v.  CROWNINSHIELD. 

SUPREME  COURT  OF  THE  UNITED  STATES.     1819. 
4  Wheaton,  122;  4  Lawyers'  Ed.  529. 

This  was  an  action  of  assumpsit,  brought  in  the  circuit  court 
of  Massachusetts,  against  the  defendant,  as  the  maker  of  two 
promissory  notes,  both  dated  at  New  York,  on  the  22d  of  March, 
1811,  for  the  sum  of  $771.86  each,  and  payable  to  the  plaintiff, 
one  on  the  1st  of  August,  and  the  other  on  the  15th  of  August, 
1811.  The  defendant  pleaded  his  discharge  under  "An  act  for 
the  benefit  of  insolvent  debtors  and  their  creditors,"  passed  by 
the  legislature  of  New  York,  the  3d  day  of  April,  1811.  After 
stating  the  provisions  of  the  said  act,  the  defendant's  plea  averred 
his  compliance  with  them,  and  that  he  was  discharged,  and  a  cer- 
tificate given  to  him  the  fifteenth  day  of  February,  1812.  To 
this  plea  there  was  a  general  demurrer,  and  joinder.  At  the  Octo- 
ber term  of  the  circuit  court,  1817,  the  cause  came  on  to  be  argued 
and  heard  on  the  said  demurrer,  and  the  following  questions 
arose,  to  wit : —  .  .  . 

3.  Whether  the  act  aforesaid  is  an  act  or  law  impairing  the 
obligation  of  contracts,  within  the  meaning  of  the  constitution 
of  the  United  States?  .  .  . 

MARSHALL,  C.  J.,  delivered  the  opinion  of  the  court.  .  .  . 
v  We  proceed  to  the  great  question  on  which  the  cause  must  de- 
pend. Does  the  law  of  New  York,  which  is  pleaded  in  this  case, 
impair  the  obligation  of  contracts,  within  the  meaning  of  the 
constitution  of  the  United  States?  This  act  liberates  the  person 
of  the  debtor,  and  discharges  him  from  all  liability  for  any  debt 


STURQES  v.  CROWNINSI 1 1 KLD.  179 

previously  contracted,  on  his  surrendering  his  property  in  the 
manner  it  prescribes.  In  discussing  the  question  whether  a  State 
is  prohibited  from  passing  such  a  law  as  this,  our  first  inquiry  IB 
into  the  meaning  of  words  in  common  use.  What  is  the  obliga- 
tion of  a  contract?  and  what  will  impair  it? 

It  would  seem  difficult  to  substitute  words  which  are  more  in- 
telligible, or  less  liable  to  misconstruction,  than  those  which  are 
to  be  explained.  A  contract  is  an  agreement  in  which  a  party 
undertakes  to  do,  or  not  to  do,  a  particular  thing.  The  law  binds 
him  to  perform  his  undertaking,  and  this  is,  of  course,  the  obliga- 
tion of  his  contract.  In  the  case  at  bar,  the  defendant  has  given 
his  promissory  note  to  pay  the  plaintiff  a  sum  of  money  on  or 
before  a  certain  day.  The  contract  binds  him  to  pay  that  sum  on 
that  day ;  and  this  is  its  obligation.  Any  law  which  releases  a 
part  of  this  obligation,  must  in  the  literal  sense  of  the  word,  im- 
pair it.  Much  more  must  a  law  impair  it  which  makes  it  totally 
invalid,  and  entirely  discharges  it. 

The  words  of  the  constitution,  then,  are  express,  and  incapable 
of  being  misunderstood.  They  admit  of  no  variety  of  construc- 
tion, and  are  acknowledged  to  apply  to  that  species  of  contract, 
an  engagement  between  man  tfnd  man,  for  the  payment  of  money, 
which  has  been  entered  into  by  these  parties.  Yet  the  opinion 
that  this  law  is  not  within  the  prohibition  of  the  constitution, 
has  been  entertained  by  those  who  are  entitled  to  great  respect, 
and  has  been  supported  by  arguments  which  deserve  to  be  seri- 
ously considered. 

It  has  been  contended,  that  as  a  contract  can  only  bind  a  man 
to  pay  to  the  full  extent  of  his  property,  it  is  an  implied  condi- 
tion that  he  may  be  discharged  on  surrendering  the  whole  of  it. 

But  it  is  not  true  that  the  parties  have  in  view  only  the  prop- 
erty in  possession  when  the  contract  is  formed,  or  that  its  obliga- 
tion does  not  extend  to  future  acquisitions.  Industry,  talents, 
and  integrity,  constitute  a  fund  which  is  as  confidently  trusted  as 
property  jtself.  Future  acquisitions  are,  therefore,  liable  for 
contracts;  and  to  release  them  from  this  liability  impairs  their 
obligation. 

It  has  been  argued,  that  the  States  are  not  prohibited  from 
passing  bankrupt  laws,  and  that  the  essential  principle  of  such 
laws  is  to  discharge  the  bankrupt  from  all  past  obligations;  that 
the  States  have  been  in  the  constant  practice  of  passing  insolvent 
laws,  'such  as  that  of  New  York,  and  if  the  framers  of  the  con- 
stitution had  intended  to  deprive  them  of  this  power,  insolvent 
laws  would  have  been  mentioned  in  the  prohibition;  that  the  pre- 


180  CASES  ON  CONSTITUTIONAL  LAW. 

vailing  evil  of  the  times,  which  produced  this  clause  in  the  con- 
stitution, was  the  practice  of  emitting  paper  money,  of  making 
property  which  was  useless  to  the  creditor  a  discharge  of  his  debt, 
and  of  changing  the  time  of  payment  by  authorizing  distant  in- 
stallments. Laws  of  this  description,  not  insolvent  laws,  consti- 
tuted, it  is  said,  the  mischief  to  be  remedied;  and  laws  of  this 
description,  not  insolvent  laws,  are  within  the  true  spirit  of  the 
prohibition. 

The  constitution  does  not  grant  to  the  States  the  power  of  pass- 
ing bankrupt  laws,  or  any  other  power ;  but  finds  them  in  posses- 
sion of  it,  and  may  either  prohibit  its  future  exercise  entirely,  or 
restrain  it  so  far  as  national  policy  may  require.  It  has  so  far 
restrained  it  as  to  prohibit  the  passage  of  any  law  impairing  the 
obligation  of  contracts.  Although,  then,  the  States  may,  until 
that  power  shall  be  exercised  by  Congress,  pass  laws  concerning 
bankrupts,  yet  they  cannot  constitutionally  introduce  into  such 
laws  a  clause  which  discharges  the  obligations  the  bankrupt  has 
entered  into.  It  is  not  admitted  that  without  this  principle,  an 
act  cannot  be  a  bankrupt  law;  and  if  it  were,  that  admission 
would  not  change  the  constitution,  nor  exempt  such  acts  from  its 
prohibitions. 

The  argument  drawn  from  the  omission  in  the  constitution  to 
prohibit  the  States  from  passing  insolvent  laws,  admits  of  several 
satisfactory  answers.  It  was  not  necessary,  nor  would  it  have 
been  safe,  had  it  even  been  the  intention  of  the  framers  of  the 
constitution  to  prohibit  the  passage  of  all  insolvent  laws,  to  enu- 
merate particular  subjects  to  which  the  principle  they  intended 
to  establish  should  apply.  The  principle  was  the  inviolability  of 
contracts.  This  principle  was  to  be  protected  in  whatsoever  form 
it  might  be  assailed.  To  what  purpose  enumerate  the  particular 
modes  of  violation  which  should  be  forbidden,  when  it  was  in- 
tended to  forbid  all  ?  Had  an  enumeration  of  all  the  laws  which 
might  violate  contracts  been  attempted,  the  provision  must  have 
been  less  complete,  and  involved  in  more  perplexity  than  it  now 
is.  The  plain  and  simple  declaration,  that  no  State  shall  pass 
any  law  impairing  the  obligation  of  contracts,  includes  insolvent 
laws  and  all  other  laws,  so  far  as  they  infringe  the  principle  the 
convention  intended  to  hold  sacred,  and  no  further. 

But  a  still  more  satisfactory  answer  to  this  argument  is,  that 
the  convention  did  not  intend  to  prohibit  the  passage  of  all  in- 
solvent laws.  To  punish  honest  insolvency  by  imprisonment  for 
life,  and  to  make  this  a  constitutional  principle,  would  be  an 
excess  of  inhumanity  which  will  not  readily  be  imputed  to  the 


STURGES  v.  CROWXIXSIIIELD.  181 

illustrious  patriots  who  framed  our  constitution,  nor  to  the  peo- 
ple who  adopted  it.  The  distinction  between  the  obligation  of  a 
contract,  and  the  remedy  given  by  the  legislature  to  enforce  that 
obligation,  has  been  taken  at  the  bar,  and  exists  in  the  nature  of 
things.  Without  impairing  the  obligation  of  the  contract,  the 
remedy  may  certainly  be  modified  as  the  wisdom  of  the  nation 
shall  direct.  Confinement  of  the  debtor  may  be  a  punishment  for 
not  performing  his  contract,  or  may  be  allowed  as  a  means  of 
inducing  him  to  perform  it.  But  the  State  may  refuse  to  inflict 
this  punishment,  or  may  withhold  this  means,  and  leave  the  con- 
tract in  full  force.  Imprisonment  is  no  part  of  the  contract, 
and  simply  to  release  the  prisoner  does  not  impair  its  obliga- 
tion. .  .  . 

The  argument  which  has  been  pressed  most  earnestly  at  the 
bar,  is,  that,  although  all  legislative  acts  which  discharge  the  obli- 
gation of  a  contract  without  performance,  are  within  the  very 
words  of  the  constitution,  yet  an  insolvent  act,  containing  this 
principle,  is  not  within  its  spirit,  because  such  acts  have  been 
passed  by  colonial  and  state  legislatures  from  the  first  settle- 
ment of  the  country,  and  because  we  know  from  the  history  of 
the  times,  that  the  mind  of  the  convention  was  directed  to  other 
laws,  which  were  fraudulent  in  their  character,  which  enabled  the 
debtor  to  escape  from  his  obligation,  and  yet  hold  his  property ; 
not  to  this,  which  is  beneficial  in  its  operation.  .  .  . 

The  fact  is  too  broadly  stated.  The  insolvent  laws  of  many, 
indeed,  of  by  far  the  greater  number  of  the  States,  do  not  contain 
this  principle.  They  discharge  the  person  of  the  debtor,  but 
leave  his  obligation  to  pay  in  full  force.  To  this  the  constitution 
is  not  opposed. 

But,  were  it  even  true  that  this  principle  had  been  introduced 
generally  into  those  laws,  it  would  not  justify  our  varying  the 
construction  of  the  section.  Every  State  in  Union,  both  while 
a  colony  and  after  becoming  independent,  had  been  in  the  prac- 
tice of  issuing  paper  money ;  yet  this  practice  is,  in  terms,  pro- 
hihited.  If  the  long  exercise  of  the  power  to  emit  bills  of  eivdit 
did  not  restrain  the  convention  from  prohibiting  its  future  exer- 
cise, neither  can  it  be  said  that  the  long  exercise  of  the  power  to 
impair  the  obligation  of  contracts,  should  prevent  a  similar  pro- 
hibition. It  is  not  admitted  that  the  prohibition  is  more  express 
in  the  one  case  than  in  the  other.  It  does  not,  indeed,  extend  to 
insolvent  laws  by  name,  because  it  is  not  a  law  by  name,  but  a 
principle  which  is  to  be  forbidden ;  and  this  principle  is  described 
in  as  appropriate  terms  as  our  language  affords. 


182  CASES  ON  CONSTITUTIONAL  LAW. 

Neither,  as  we  conceive,  will  any  admissible  rule  of  construc- 
tion justify  us  in  limiting  the  prohibition  under  consideration, 
to  the  particular  laws  which  have  been  described  at  the  bar,  and 
which  furnished  such  cause  for  general  alarm.  What  were  those 
laws? 

We  are  told  they  were  such  as  grew  out  of  the  general  distress 
following  the  war  in  which  our  independence  was  established.  To 
relieve  this  distress  paper  money  was  issued;  worthless  lands, 
and  other  property  of  no  use  to  the  creditor,  were  made  a  tender 
in  payment  of  debts;  and  the  time  of  payment,  stipulated  in 
the  contract,  was  extended  by  law.  These  were  the  peculiar  evils 
of  the  day.  So  much  mischief  was  done,  and  so  much  more  was 
apprehended,  that  general  distrust  prevailed,  and  all  confidence 
between  man  and  man  was  destroyed.  To  laws  of  this  description 
therefore  it  is  said,  the  prohibition  to  pass  laws  impairing  the 
obligation  of  contracts  ought  to  be  confined. 

Let  this  argument  be  tried  by  the  words  of  the  section  under 
consideration.  Was  this  general  prohibition  intended  to  prevent 
paper  money?  We  are  not  allowed  to  say  so,  because  it  is  ex- 
pressly provided,  that  no  State  shall  "emit  bills  of  credit;" 
neither  could  these  words  be  intended  to  restrain  the  States  from 
enabling  debtors  to  discharge  their  debts  by  the  tender  of  prop- 
erty of  no  real  value  to  the  creditor,  because  for  that  subject  also 
particular  provision  is  made.  Nothing  but  gold  and  silver  coin 
can  be  made  a  tender  in  payment  of  debts.  .  .  . 

The  fair,  and  we  think,  the  necessary  construction  of  the  sen- 
tence ["No  State  shall  pass  any  law  impairing  the  obligation  of 
contracts"]  requires,  that  we  should  give  these  words  their  full 
and  obvious  meaning.  A  general  dissatisfaction  with  that  lax 
system  of  legislation  which  followed  the  war  of  our  Revolution, 
undoubtedly  directed  the  mind  of  the  convention  to  this  subject. 
It  is  probable  that  laws  such  as  those  which  have  been  stated  in 
argument,  produced  the  loudest  complaints,  were  most  immedi- 
ately felt.  The  attention  of  the  convention,  therefore,  was  par- 
ticularly directed  to  paper  money,  and  to  acts  which  enabled 
the  debtor  to  discharge  his  debt  otherwise  than  was  stipulated 
in  the  contract.  Had  nothing  more  been  intended,  nothing  more 
would  have  been  expressed.  But,  in  the  opinion  of  the  conven- 
tion, much  more  remained  to  be  done.  The  same  mischief  might 
be  effected  by  other  means.  To  restore  public  confidence  com- 
pletely, it  was  necessary  not  only  to  prohibit  the  use  of  particular 
means  by  which  it  might  be  effected,  but  to  prohibit  the  use  of 
any  means  by  which  the  same  mischief  might  be  produced.  The 


STURG ES  v.  CRCttV X I  \  s  1 1 1 1; LD.  183 

convention  appears  to  have  intended  to  establish  a  great  princi- 
ple, that  contracts  should  be  inviolable.  The  constitution,  there- 
fore, declares,  that  no  State  shall  pass  "any  law  impairing  the 
obligation  of  contracts," 

If,  as  we  think,  it  must  be  admitted  that  this  intention  might 
actuate  the  convention;  that  it  is  not  only  consistent  with,  but 
is  apparently  manifested  by,  all  that  part  of  the  section  which 
respects  this  subject ;  that  the  words  used  are  well  adapted  to  the 
expression  of  it ;  that  violence  would  be  done  to  their  plain  mean- 
ing by  understanding  them  in  a  more  limited  sense;  those  rules 
of  construction,  which  have  been  consecrated  by  the  wisdom  of 
ages,  compel  us  to  say,  that  these  words  prohibit  the  passage  of 
any  law  discharging  a  contract  without  performance. 

By  way  of  analogy,  the  statutes  of  limitations,  and  against 
usury,  have  been  referred  to  in  argument ;  and  it  has  been  sup- 
posed that  the  construction  of  the  constitution,  which  this  opin- 
ion maintains,  would  apply  to  them  also,  and  must  therefore  be 
too  extensive  to  be  correct. 

We  do  not  think  so.  Statutes  of  limitations  relate  to  the  reme- 
dies which  are  furnished  in  the  courts.  They  rather  establish, 
that  certain  circumstances  shall  amount  to  evidence  that  a  con- 
tract has  been  performed,  than  dispense  with  its  performance. 
If,  in  a  State  where  six  years  may  be  pleaded  in  bar  to  an  action 
of  assumpsit,  a  law  should  pass  declaring  that  contracts  already 
in  existence,  not  barred  by  the  statute,  should  be  construed  to  be 
within  it,  there  could  be  little  doubt  of  its  unconstitutionally. 

So  with  respect  to  the  laws  against  usury.  If  the  law  be,  that 
no  person  shall  take  more  than  six  per  centum  per  annum  for  the 
use  of  money,  and  that,  if  more  be  reserved,  the  contract  shall 
be  void,  a  contract  made  thereafter  reserving  seven  per  cent, 
would  have  no  obligation  in  its  commencement;  but  if  a  law 
should  declare  that  contracts  already  entered  into,  and  reserv- 
ing the  legal  interest,  should  be  usurious  and  void,  either  in  the 
whole  or  in  part,  it  would  impair  the  obligation  of  the  contract, 
and  would  be  clearly  unconstitutional. 

This  opinion  is  confined  to  the  case  actually  under  considera- 
tion. It  is  confined  to  a  case  in  which  a  creditor  sues  in  a  court, 
the  proceedings  of  which  the  legislature,  whose  act  is  pleaded, 
had  not  a  right  to  control,  and  to  a  case  where  the  creditor  had 
not  proceeded  to  execution  against  the  body  of  his  debtor,  within 
the  State  whose  law  attempts  to  absolve  a  confined  insohvnt 
debtor  from  his  obligation.  When  such  a  case  arises,  it  will  be 
considered. 


184  CASES  ON  CONSTITUTIONAL  LAW. 

It  is  the  opinion  of  the  court,  that  the  act  of  the  State  of  New 
York,  which  is  pleaded  by  the  defendant  in  this  cause,  so  far  as 
it  attempts  to  discharge  this  defendant  from  the  debt  in  the  dec- 
laration mentioned,  is  contrary  to  the  constitution  of  the  United 
States,  and  that  the  plea  is  no  bar  to  the  action.  .  .  . 

NOTE. — As  to  the  operation  of  the  bankruptcy  laws  of  the  States,  see 
Ogden  v.  Saunders  (1827),  12  Wheaton,  213;  Cook  v.  Moffatt,  et  al.  (1847), 
5  Howard,  295,  and  Baldwin  v.  Hale  (1863),  1  Wallace,  223. 

' '  By  the  obligation  of  a  contract  is  meant  the  means  which,  at  the  time 
of  its  creation,  the  law  affords  for  its  enforcement. ' '  Field,  J.,  in  Nelson 
v.  St.  Martin's  Parish  (1884),  111  U.  S.  716.  Any  form  of  State  law 
which  impairs  the  obligation  of  a  contract  is  invalid.  Murray  v.  Charleston 
(1877),  96  II.  S.  432;  New  Orleans  Waterworks  Co.  v.  Louisiana  Sugar 
Refining  Co.  (1888),  125  U.  S.  18  (a  municipal  ordinance);  Grand  Trunk 
Western  By.  v.  Railroad  Commission  of  Indiana  (1911),  221  U.  S.  400 
(administrative  order  of  a  State  commission);  Ross  v.  Oregon  (1913),  227 
U.  S.  150  (a  State  constitution).  The  restraint  operates  only  upon  a  State's 
legislative  power,  not  upon  the  decisions  of  its  courts.  Calder  v.  Bull  (1798), 
3  Dallas,  386;  Fletcher  v.  Peck  (1810),  6  Cranch,  87;  Commercial  Bank  v. 
Buckingham's  Executors  (1847),  5  Howard,  317;  Central  Land  Company 
v.  Laidley  (1895),  159  U.  S.  103;  Moore-Mansfield  Construction  Co.  v. 
Electrical  Installation  Co.  (1914),  234  U.  S.  619;  but  see  Gelpcke  v.  Dubuque 
(1863),  1  Wallace,  175;  Township  of  Pine  Grove  v.  Talcott  (1874),  19 
Wallace,  666;  Douglas  v.  County  of  Pike  (1880),  101  U.  8.  677;  Louisiana 
v.  Pilsbury  (1881),  105  U.  S.  278.  When  a  State  gives  effect  to  later  legis- 
lation on  the  ground  that  the  earlier  legislation  did  not  create  a  contract, 
it  is  for  the  Federal  Supreme  Court  to  determine  whether  or  not  a  contract 
existed.  Russell  v.  Sebastian  (1914),  233  U.  S.  195;  Louisiana 'Railway  & 
Navigation  Co.  v.  New  Orleans  (1914),  235  U.  S.  164.  As  to  what  consti- 
tutes an  impairment  of  the  obligation  of  a  contract,  see  Livingston  v.  Moore 
(1833),  7  Peters,  469;  Walker  v.  Whitehead  (1872),  16  Wallace,  314;  Ten- 
nessee v.  Sneed  (1877),  96  U.  S.  69;  New  Orleans  &c.  Ry.  v.  New  Orleans 
(1895),  157  U.  S.  219  (changes/ in  remedy);  Gunn  v.  Barry  (1873),  15 
Wallace,  610;  Edwards  v.  Kearzey  (1878),  96  U.  S.  595  (material  extension 
of  exemption  laws);  Bronson  v.  Kinzie  (1843),  1  Howard,  311;  Barvitz  v. 
Beverley  (1896),  163  U.  S.  118  (statutes  altering  mortgagor's  right  of 
redemption);  Penniman's  Case  (1881),  103  U.  S.  714  (abolition  of  im- 
prisonment for  debt) ;  Wheeler  v.  Jackson  (1890),  137  U.  S.  245  (alteration 
in  statute  of  limitations). 


CHAPTER  V. 

MONEY. 
SECTION  1.    BILLS  OP  CREDIT, 

No  State  shall     .    .     .    emit  bills  of  credit. 

Constitution  of  the  United  State*,  Art.  1,  tee.  9. 

CRAIG  ET  AL.  v.  THE  STATE  OF  MISSOURI. 

SUPREME  COURT  or  THE  UNITED  STATES.    1830. 
4  Peters,  410;  7  Lawyers'  Ed.  903. 

[Writ  of  error  to  the  Supreme  Court  of  Missouri.  The  legis- 
lature of  Missouri  in  1821  passed  an  act  entitled  "An  act  for 
the  establishment  of  loan-offices."  It  provided  for  the  issue  by 
the  State  of  certificates  ranging  in  value  from  fifty  cents  to  ten 
dollars  in  the  following  form:  "This  certificate  shall  be  receiv- 
able at  the  treasury,  or  any  of  the  loan-offices  of  the  State  of 
•  uri.  in  the  discharge  of  taxes  or  debts  due  to  the  State,  for 

the  sum  of  $ ,  with  interest  for  the  same,  at  the  rate  of  two 

per  centum  per  annum  from  this  date,  the day  of  -       — , 

182 — ."  Such  certificates  were  made  receivable  for  all  taxes  or 
other  debts  due  to  the  State,  or  to  any  county  or  town  therein, 
and  all  officers  in  the  State,  both  civil  and  military,  were  required 
to  receive  them  in  payment  of  salaries.  Provision  was  also  made 
for  the  loan  of  the  certificates.  The  present  action  was  a  suit 
on  a  promissory  note  given  for  such  a  loan.  The  defendants 
entered  a  plea  of  non-assumpsit  on  the  ground  that  the  considera- 
tion for  which  the  note  was  given  was  invalid.] 

MARSHALL,  C.  J.,  delivered  the  opinion  of  the  court.     .     .    . 

This  brings  us  to  the  great  question  in  the  cause:  Is  the  act  of 
the  legislature  of  Missouri  repugnant  to  the  constitution  of  the 
rnit.-d  States? 

The  counsel  for  the  plaintiffs  in  error  maintain  that  it  is  re- 
pugnant to  tho  constitution.  h«-eause  its  object  is  the  emission  of 
Kills  of  .-redit,  contrary  to  the  express  prohibition  contained  in 
the  tenth  section  of  the  first  article.  .  .  . 

The  clause  in  the  constitution  which  this  act  is  supposed  to 

185 


186  CASES  ON  CONSTITUTIONAL  LAW. 

violate  is  in  these  words:  "No  State  shall"  "emit  bills  of 
credit." 

What  is  a  bill  of  credit?  What  did  the  constitution  mean  to 
forbid  ? 

In  its  enlarged,  and  perhaps  its  literal  sense,  the  term  ' '  bill  of 
credit"  may  comprehend  any  instrument  by  which  a  State  en- 
gages to  pay  money  at  a  future  day ;  thus  including  a  certificate 
given  for  money  borrowed.  But  the  language  of  the  constitution 
itself,  and  the  mischief  to  be  prevented,  which  we  know  from  the 
history  of  our  country,  equally  limits  the  interpretation  of  the 
terms.  The  word  "emit"  is  never  employed  in  describing  those 
contracts  by  which  a  State  binds  itself  to  pay  money  at  a  future 
day  for  services  actually  received,  or  for  money  borrowed  for 
present  use ;  nor  are  instruments  executed  for  such  purposes,  in 
common  language,  denominated  "bills  of  credit."  To  "emit 
bills  of  credit,"  conveys  to  the  mind  the  idea  of  issuing  paper 
intended  to  circulate  through  the  community  for  its  ordinary 
purposes,  as  money,  which  paper  is  redeemable  at  a  future  day. 
This  is  the  sense  in  which  the  terms  have  been  always  under- 
stood. 

At  a  very  early  period  of  our  colonial  history,  the  attempt  to 
supply  the  want  of  the  precious  metals  by  a  paper  medium  was 
made  to  a  considerable  extent ;  and  the  bills  emitted  for  this  pur- 
pose have  been  frequently  denominated  bills  of  credit.  During 
the  war  of  our  Revolution,  we  were  driven  to  this  expedient ;  and 
necessity  compelled  us  to  use  it  to  a  most  fearful  extent.  The 
term  has  acquired  an  appropriate  meaning ;  and  ' '  bills  of  credit ' ' 
signify  a  paper  medium,  intended  to  circulate  between  individ- 
uals, and  between  government  and  individuals,  for  the  ordinary 
purposes  of  society.  Such  a  medium  has  been  always  liable  to 
considerable  fluctuation.  Its  value  is  continually  changing ;  and 
these  changes,  often  great  and  sudden,  expose  individuals  to 
immense  loss,  are  the  sources  of  ruinous  speculations,  and  destroy 
all  confidence  between  man  and  man.  To  cut  up  this  mischief  by 
the  roots,  a  mischief  which  was  felt  through  the  United  States, 
and  which  deeply  affected  the  interest  and  prosperity  of  all,  the 
people  declared  in  their  constitution,  that  no  State  should  emit 
bills  of  credit.  If  the  prohibition  means  anything,  if  the  words 
are  not  empty  sounds,  it  must  comprehend  the  emission  of  any 
paper  medium,  by  a  State  government,  for  the  purpose  of  com- 
mon circulation. 

What  is  the  character  of  the  certificates  issued  by  authority  of 
the  act  under  consideration?  What  office  are  they  to  perform? 


CRAIG  v.  STATE  OP  MISSOURI.  187 

Certificates  signed  by  the  auditor  and  treasurer  of  the  State,  are 
to  be  issued  by  those  officers  to  the  amount  of  two  hundred  thou- 
sand dollars,  of  denominations  not  exceeding  ten  dollars,  nor  less 
than  fifty  cents.  The  paper  purports  on  its  face  to  be  receivable 
at  the  treasury,  or  at  any  loan-office  of  the  State  of  Missouri,  in 
discharge  of  taxes  or  debts  due  to  the  State. 

The  law  makes  them  receivable  in  discharge  of  all  taxes,  or 
debts  due  to  the  State,  or  any  county  or  town  therein ;  and  of  all 
salaries  and  fees  of  office,  to  all  officers  civil  and  military  within 
the  State ;  and  for  salt  sold  by  the  lessees  of  the  public  salt  works. 
It  also  pledges  the  faith  and  funds  of  the  State  for  their  re- 
demption. 

It  seems  impossible  to  doubt  the  intention  of  the  legislature  in 
passing  this  act,  or  to  mistake  the  character  of  these  certificates, 
or  the  office  they  were  to  perform.  The  denominations  of  the 
bills,  from  ten  dollars  to  fifty  cents,  fitted  them  for  the  purpose 
of  ordinary  circulation ;  and  their  reception  in  payment  of  taxes, 
.  and  debts  to  the  government  and  to  corporations,  and  of  salaries 
and  fees,  would  give  them  currency.  They  were  to  be  put  into 
circulation ;  that  is,  emitted  by  the  government.  In  addition  to 
all  these  evidences  of  an  intention  to  make  these  certificates  the 
ordinary  circulating  medium  of  the  country,  the  law  speaks  of 
them  in  this  character ;  and  directs  the  auditor  and  treasurer  to 
withdraw  annually  one-tenth  of  them  from  circulation.  Had 
they  been  termed  "bills  of  credit,"  instead  of  "certificates," 
nothing  would  have  been  wanting  to  bring  them  within  the  pro- 
hibitory words  of  the  constitution. 

And  can  this  make  any  real  difference?  Is  the  proposition  to 
be  maintained  that  the  constitution  meant  to  prohibit  names  and 
not  things  ?  That  a  very  important  act,  big  with  great  and  ruin- 
ous mischief,  which  is  expressly  forbidden  by  words  most  appro- 
priate for  its  description,  may  be  performed  by  the  substitution 
of  a  name?  That  the  constitution,  in  one  of  its  most  important 
provisions,  may  be  openly  evaded  by  giving  a  new  name  to  an  old 
thing?  We  cannot  think  so.  We  think  the  certificates  emitted 
under  the  authority  of  this  act  are  as  entirely  bills  of  credit  as 
if  they  had  been  so  denominated  in  the  act  itself. 

But  it  is  contended  that  though  these  certificates  should  be 
deemed  bills  of  credit,  according  to  the  common  acceptation  of 
the  term,  they  are  not  so  in  the  sense  of  the  constitution,  because 
they  are  not  made  a  legal  tender. 

The  constitution  its«>lf  furnishes  no  countenance  to  this  dis- 
tinction. The  prohibition  is  general.  It  extends  to  all  bills  of 


188  CASES  ON  CONSTITUTIONAL  LAW. 

credit,  not  to  bills  of  a  particular  description.  That  tribunal 
must  be  bold,  indeed,  which,  without  the  aid  of  other  explanatory 
words,  could  venture  on  this  construction.  It  is  the  less  admis- 
sible in  this  case,  because  the  same  clause  of  the  constitution  con- 
tains a  substantive  prohibition  to  the  enactment  of  tender  laws. 
The  constitution,  therefore,  considers  the  emission  of  bills  of 
credit,  and  the  enactment  of  tender  laws,  as  distinct  operations, 
independent  of  each  other,  which  may  be  separately  performed. 
Both  are  forbidden.  To  sustain  the  one,  because  it  is  not  also  the 
other ;  to  say  that  bills  of  credit  may  be  emitted,  if  they  be  not 
made  a  tender  in  payment  of  debts, — is,  in  effect,  to  expunge  that 
distinct  independent  prohibition,  and  to  read  the  clause  as  if  it 
had  been  entirely  omitted.  We  are  not  at  liberty  to  do  this. 

The  history  of  paper  money  has  been  referred  to,  for  the  pur- 
pose of  showing  that  its  great  mischief  consists  in  being  made  a 
tender;  and  that  therefore  the  general  words  of  the  constitution 
may  be  restrained  to  a  particular  intent. 

Was  it  even  true,  that  the  evils  of  paper  money  resulted  solely 
from  the  quality  of  its  being  made  a  tender,  this  court  would 
not  feel  itself  authorized  to  disregard  the  plain  meaning  of 
words,  in  search  of  a  conjectural  intent  to  which  we  are  not  con- 
ducted by  the  language  of  any  part  of  the  instrument.  But  we 
do  not  think  that  the  history  of  our  country  proves  either  that 
being  made  a  tender  in  payment  of  debts  is  an  essential  quality 
of  bills  of  credit,  or  the  only  mischief  resulting  from  them.  It 
may,  indeed,  be  the  most  pernicious ;  but  that  will  not  authorize 
a  court  to  convert  a  general  into  a  particular  prohibition. 

We  learn  from  Hutchinson's  History  of  Massachusetts,  vol.  i., 
p.  402,  that  bills  of  credit  were  emitted  for  the  first  time  in 
that  colony  in  1690.  An  army  returning  unexpectedly  from  an 
expedition  against  Canada,  which  had  proved  as  disastrous  as 
the  plan  was  magnificent,  found  the  government  totally  unpre- 
pared to  meet  their  claims.  Bills  of  credit  were  resorted  to,  for 
relief  from  this  embarrassment.  They  do  not  appear  to  have 
been  made  a  tender ;  but  they  were  not  on  that  account  the  less 
bills  of  credit,  nor  were  they  absolutely  harmless.  The  emis- 
sion, however,  not  being  considerable,  and  the  bills  being  soon 
redeemed,  the  experiment  would  have  been  productive  of  not 
much  mischief,  had  it  not  been  followed  by  repeated  emissions 
to  a  much  larger  amount.  The  subsequent  history  of  Massa- 
chusetts abounds  with  proofs  of  the*  evils  with  which  paper 
money  is  fraught,  whether  it  be  or  be  not  a  legal  tender. 

Paper  money  was  also  issued  in  other  colonies,  both. in  the 


CRAIG  v.  STATE  OF  MISSOURI.  189 

North  and  South;  and  whether  made  a  tender  or  not,  was  pro- 
ductive of  evils  in  proportion  to  the  quantity  emitted.  In  the 
war  which  commenced  in  America  in  1755,  Virginia  issued  pa- 
per money  at  several  successive  sessions,  under  the  appellation 
of  treasury  notes.  This  was  made  a  tender.  Emissions  were 
afterwards  made  in  1769,  in  1771,  and  in  1773.  These  were  not* 
made  a  tender;  but  they  circulated  together;  were  equally  bills 
of  credit;  and  were  productive  of  the  same  effects.  In  1775,  a 
considerable  emission  was  made  for  the  purposes  of  the  war.  The 
bills  were  declared  to  be  current  but  were  not  made  a  tender. 
In  1776,  an  additional  emission  was  made,  and  the  bills  were 
declared  to  be  a  tender.  The  bills  of  1775  and  1776  circulated 
together;  were  equally  bills  of  credit;  and  were  productive  of 
the  same  consequences. 

Congress  emitted  bills  of  credit  to  a  large  amount;  and  did 
not,  perhaps  could  not,  make  them  a  legal  tender.  This  power 
resided  in  the  States.  In  May,  1777,  the  legislature  of  Vir- 
ginia passed  an  act  for  the  first  time  making  the  bills  of  credit 
issued  under  the  authority  of  congress  a  tender  so  far  as  to 
extinguish  interest  It  was  not  until  March,  1781,  that  Virginia 
passed  an  act  making  all  the  bills  of  credit  which  had  been 
emitted  by  congress,  and  all  which  had  been  emitted  by  the 
State,  a  legal  tender  in  payment  of  debts.  Yet  they  were  in 
every  sense  of  the  word  bills  of  credit,  previous  to  that  time; 
and  were  productive  of  all  the  consequences  of  paper  money.  We 
cannot,  then,  assent  to  the  proposition,  that  the  history  of  our 
country  furnishes  any  just  argument  in  favor  of  that  restricted 
construction  of  the  constitution,  for  which  the  counsel  for  the 
defendant  in  error  contends. 

The  certificates  for  which  this  note  was  given,  being  in  truth 
"bills  of  credit"  in  the  sense  of  the  constitution,  we  are  brought 
to  the  inquiry: — Is  the  note  valid  of  which  they  form  the  con- 
sideration f 

It  has  been  long  settled,  that  a  promise  made  in  consideration 
of  an  act  which  is  forbidden  by  law  is  void.  It  will  not  be  qu-  s- 
tioned  that  an  act  forbidden  by  the  constitution  of  the  United 
States,  which  is  the  supreme  law,  is  against  law.  Now  the  con- 
st it ution  forbids  a  State  to  "emit  bills  of  credit."  The  loan 
of  these  certificates  is  the  very  act  which  is  forbidden.  It  is  not 
the  making  of -them  while  they  lie  in  the  loan-offices,  hut  th»» 
issuing  of  them,  the  putting  them  into  circulation,  which  is  the 
act  of  emission,  the  act  that  is  forbidden  by  the  constitution. 
The  consideration  of  this  note  is  the  emission  of  bills  of  credit 


190  CASES  ON  CONSTITUTIONAL  LAW. 

by  the  State.  The  very  act  which  constitutes  the  consideration, 
is  the  act  of  emitting  bills  of  credit,  in  the  mode  prescribed  by 
the  law  of  Missouri ;  which  act  is  prohibited  by  the  constitution 
of  the  United  States.  .  .  . 

The  judgment  of  the  supreme  court  of  the  State  of  Missouri  for 
the  first  judicial  district  is  reversed,  and  the  cause  remanded, 
with  directions  to  enter  judgment  for  the  defendants. 

[ME.  JUSTICE  JOHNSON,  MR.  JUSTICE  THOMPSON  and  MR.  JUS- 
TICE M'LEAN  delivered  dissenting  opinions.] 


JOHN  BRISCOE  AND  OTHERS  v.  THE  PRESIDENT  AND 
DIRECTORS  OF  THE  BANK  OF  THE  COMMON- 
WEALTH OF  KENTUCKY. 

SUPREME  COURT  OF  THE  UNITED  STATES.     1837. 
11  Peters,  257;  9  Lawyers'  Ed.  709. 

[Writ  of  error  to  the  Court  of  Appeals  of  Kentucky.  The 
legislature  of  Kentucky  enacted  a  law  providing  for  the  incor- 
poration of  the  Bank  of  Kentucky.  The  president  and  board  of 
directors  were  elected  by  joint  ballot  of  the  two  houses  of  the 
legislature  and  all  the  capital  stock  of  the  bank  was  the  exclu- 
sive property  of  the  State  of  Kentucky*  The  bank  was  author- 
ized to  issue  notes  which  were  made  payable  to  the  bearer  in 
gold  and  silver  on  demand,  and  were  receivable  in  payment  of 
taxes  and  other  debts  due  to  the  State.  This  action  was  brought 
on  a  promissory  note  given  to  the  bank  by  John  Briscoe  and 
others,  who  set  up  the  plea  that  the  bank  bills  which  were  the 
consideration  for  which  their  note  was  given  were  invalid.] 

M'LEAN,  J.,  delivered  the  opinion  of  the  court.     .     .     . 

The  federal  government  is  one  of  delegated  powers.  All 
powers  not  delegated  to  it,  or  inhibited  to  the  States,  are  re- 
served to  the  States,  or  to  the  people.  A  State  cannot  emit  bills 
of  credit;  or,  in  other  words,  it  cannot  issue  that  description  of 
paper  to  answer  the  purposes  of  money,  which  was  denominated, 
before  the  adoption  of  the  constitution,  bills  of  credit.  But  a 
State  may  grant  acts  of  incorporation  for  the  attainment  of 
those  objects  which  are  essential  to  the  interests  of  society.  This 
power  is  incident  to  sovereignty;  and  there  is  no  limitation  in 


BRISCOE  v.  BANK  OP  KENTUCKY.  191 

the  federal  constitution  on  its  exercise  by  the  States,  in  respect 
to  the  incorporation  of  banks. 

At  the  time  the  constitution  was  adopted,  the  Bank  of  North 
America,  and  the  Massachusetts  Bank,  and  some  others,  were  in 
operation.  It  cannot,  therefore,  be  supposed  that  the  notes  of 
these  banks  were  intended  to  be  inhibited  by  the  constitution,  or 
that  they  were  considered  as  bills  of  credit  within  the  meaning 
of  that  instrument.  In  fact,  in  many  of  their  most  distinguish- 
ing characteristics,  they  were  essentially  different  from  bills 
of  credit,  in  any  of  the  various  forms  in  which  they  were  issued. 

If,  then,  the  powers  not  delegated  to  the  federal  government, 
nor  denied  to  the  States,  are  retained  by  the  States  or  the  peo- 
ple, and  by  a  fair  construction  of  the  terms  bills  of  credit,  as 
used  in  the  constitution,  they  do  not  include  ordinary  bank 
notes,  does  it  not  follow  that  the  power  to  incorporate  banks  to 
issue  these  notes  may  be  exercised  by  a  State  ?  A  uniform  course 
of  action,  involving  the  right  to  the  exercise  of  an  important 
power  by  the  state  gorernment  for  half  a  century,  and  this 
almost  without  question,  is  no  unsatisfactory  evidence  that  the 
power  is  rightfully  exercised.  But  this  inquiry,  though  em- 
braced in  the  printed  argument,  does  not  belong  to  the  case,  and 
is  abandoned  at  the  bar. 

A  State  cannot  do  that  which  the  federal  constitution  declares 
it  shall  not  do.  It  cannot  coin  money.  Here  is  an  act  inhibited 
in  terms  so  precise  that  they  cannot  be  mistaken.  They  are  sus- 
ceptible of  but  one  construction.  And  it  is  certain  that  a  State 
cannot  incorporate  any  number  of  individuals,  and  authorize 
them  to  coin  money.  Such  an  act  would  be  as  much  a  violation 
of  the  constitution  as  if  the  money  were  coined  by  an  officer  of 
the  State,  under  its  authority.  The  act  being  prohibited  cannot 
be  done  by  a  State,  either  directly  or  indirectly. 

And  the  same  rule  applies  as  to  the  emission  of  bills  of  credit 
by  a  State.  The  terms  used  here  are  less  specific  than  those 
which  relate  to  coinage.  Whilst  no  one  can  mistake  the  latter, 
there  are  great  differences  of  opinion  as  to  the  construction  of 
the  former.  If  the  terms  in  each  case  were  equally  definite,  and 
were  susceptible  of  but  one  construction,  there  could  be  no  more 
difficulty  in  applying  the  rule  in  the  one  case  than  in  the  other. 

The  weight  of  the  argument  is  admitted,  that  a  State  cannot, 
by  apy  device  that  may  be  adopted,  emit  bills  of  credit.  But 
the  question  arises,  what  is  a  bill  of  credit  within  the  meaning 
of  the  constitution?  On  the  answer  to  this  must  depend  the 
constitutionality  or  unconstitutionality  of  the  act  in  question. 


192  CASES  ON  CONSTITUTIONAL  LAW. 

A  State  can  act  only  through  its  agents;  and  it  would  be 
absurd  to  say  that  any  act  was  not  done  by  a  State  which  was 
done  by  its  authorized  agents. 

To  constitute  a  bill  of  credit  within  the  constitution,  it  must 
be  issued  by  a  State,  on  the  faith  of  the  State,  and  be  designed 
to,  circulate  as  money.  It  must  be  a  paper  which  circulates  on 
the  credit  of  the  State ;  and  is  so  received  and  used  in  the  ordi- 
nary business  of  life. 

The  individual  or  committee  who  issue  the  bill  must  have  the 
power  to  bind  the  State ;  they  must  act  as  agents ;  and,  of  course, 
do  not  incur  any  personal  responsibility,  nor  impart,  as  individ- 
uals, any  credit  to  the  paper.  These  are  the  leading  characteris- 
tics of  a  bill  of  credit,  which  a  State  cannot  emit.  .  .  . 

Were  these  notes  issued  by  the  State  ? 

Upon  their  face  they  do  not  purport  to  be  issued  by  the  State, 
but  by  the  president  and  directors  of  the  bank.  They  promise  to 
pay  to  bearer  on  demand  the  sums  stated.  Were  they  issued  on 
the  faith  of  the  State  ?  The  notes  contain  no  pledge  of  the  faith 
of  the  State  in  any  form.  They  purport  to  have  been  issued  on 
the  credit  of  the  funds  of  the  bank,  and  must  have  been  so 
received  in  the  community. 

But  these  funds,  it  is  said,  belonged  to  the  State;  and  the 
promise  to  pay  on  the  face  of  the  notes  was  made  by  the  presi- 
dent and  directors  as  agents  of  the  State.  They  do  not  assume 
to  act  as  agents,  and  there  is  no  law  which  authorizes  them  to 
bind  the  State.  As  in,  perhaps,  all  bank  charters,  they  had  the 
power  to  issue  a  certain  amount  of  notes;  but  they  determined 
the  time  and  circumstances  which  should  regulate  these  issues. 

When  a  State  emits  bills  of  credit,  the  amount  to  be  issued  is 
fixed  by  law,  as  also  the  fund  out  of  which  they  are  to  be  paid, 
if  any  fund  be  pledged  for  their  redemption ;  and  they  are  issued 
on  the  credit  of  the  State,  which,  in  some  form,  appears  upon 
the  face  of  the  notes,  or  by  the  signature  of  the  person  who 
issues  them. 

As  to  the  funds  of  the  Bank  of  the  Commonwealth,  they  were, 
in  part  only,  derived  from  the  State.  The  capital,  it  is  true,  was 
to  be  paid  by  the  State;  but  in  making  loans  the  bank  was  re- 
quired to  take  good  securities,  and  these  constituted  a  fund,  to 
which  the  holders  of  the  notes  could  look  for  payment,  and  which 
could  be  made  legally  responsible. 

In  this  respect  the  notes  of  this  bank  were  essentially  different 
from  any  class  of  bills  of  credit  which  are  believed  to  have  been 
issued. 


BRISCOE  v.  BANK  OF  KENTUCKY.  193 

The  notes  wore  not  payable  in  gold  and  silver  on  demand,  but 
there  was  a  fund,  and,  in  nil  probability,  a  sufficient  fund,  to 
redeem  them.  This  fund  was  in  possession  of  the  bank,  and 
under  the  control  of  the  president  and  directors.  But  whether 
the  fund  was  adequate  to  the  redemption  of  the  notes  issued,  or 
not,  is  immaterial  to  the  present  inquiry.  It  is  enough  that  the 
fund  existed,  independent  of  the  State,  and  was  sufficient  to 
give  some  degree  of  credit  to  the  paper  of  the  bank. 

The  question  is  not  whether  the  Bank  of  the  Commonwealth 
had  a  large  capital  or  a  small  one,  or  whether  its  notes  were  in 
good  credit  or  bad,  but  whether  they  were  issued  by  the  State, 
and  on  the  faith  and  credit  of  the  State.  The  notes  were  received 
in  payment  of  taxes,  and  in  discharge  of  all  debts  to  the  State ; 
and  this,  aided  by  the  fund  arising  from  notes  discounted,  with 
prudent  management,  under  favorable  circumstances,  might 
have  sustained,  and,  it  is  believed,  did  sustain,  to  a  considerable 
extent,  the  credit  of  the  bank.  The  notes  of  this  bank  which  are 
still  in  circulation  are  equal  in  value,  it  is  said,  to  specie. 

But  there  is  another  quality  which  distinguished  these  notes 
from  bills  of  credit.  Every  holder  of  them  could  not  only  look 
to  the  funds  of  the  bank  for  payment,  but  he  had  in  his  power 
the  means  of  enforcing  it. 

The  bank  could  be  sued;  and  the  records  of  this  court  show 
that  while  its  paper  was  depreciated,  a  suit  was  prosecuted  to 
judgment  against  it  by  a  depositor,  and  who  obtained  from  the 
bank,  it  is  admitted,  the  full  amount  of  his  judgment  in  specie. 
.  .  .  [Here  follows  a  description  of  bills  issued  by  Maryland 
and  South  Carolina.] 

If  the  leading  properties  of  the  notes  of  the  Bank  of  the  Com- 
monwealth were  essentially  different  from  any  of  the  numerous 
classes  of  bills  of  credit,  issued  by  the  States  or  colonies ;  if  they 
were  not  emitted  by  the  State,  nor  upon  its  credit,  but  on  the 
credit  of  the  funds  of  the  bank;  if  they  were  payable  in  gold 
and  silver  on  demand,  and  the  holder  could  sue  the  bank;  and 
if  to  constitute  a  bill  of  credit  it  must  be  issued  by  a  State,  and 
on  the  credit  of  the  State,  and  the  holder  could  not,  by  legal 
means,  compel  the  payment  of  the  bill,  how  can  the  character  of 
these  two  descriptions  of  paper  be  considered  as  identical  ?  They 
were  both  circulated  as  money;  but  in  name,  in  form,  and  in 
substance,  they  differ.  .  .  . 

It  is  admitted  by  the  counsel  for  the  plaintiffs  that  a  State 
may  become  a  stockholder  in  a  bank;  but  they  contend  that  it 
cannot  become  the  exclusive  owner  of  the  stock.  They  give  no 

K.  c.  u-w 


194  CASES  ON  CONSTITUTIONAL  LAW. 

rule  by  .which  the  interest  of  a  State  in  such  an  institution  shall 
be  graduated,  nor  at  what  point  the  exact  limit  shall  be  fixed. 
May  a  State  own  one-fourth,  one-half,  or  three-fourths  of  the 
stock  ?  If  the  proper  limit  be  exceeded,  does  the  charter  become 
unconstitutional ;  and  is  its  constitutionality  restored  if  the  State 
recede  within  the  limit  ?  The  court  are  as  much  at  a  loss  to  fix 
the  supposed  constitutional  boundary  of  this  right  as  the  counsel 
can  possibly  be. 

If  the  State  must  stop  short  of  o.wning  the  entire  stock,  the 
precise  point  may  surely  be  ascertained.  It  cannot  be  supposed 
that  so  important  a  constitutional  principle  as  contended  for 
exists  without  limitation.  If  a  State  may  own  a  .part  of  the 
stock  of  a  bank,  we  know  of  no  principle  which  prevents  it  from 
owning  the  whole.  As  a  stockholder,  in  the  language  of  this 
court,  above  cited,  it  can  exercise  no  more  power  in  the  affairs 
of  the  corporation  than  is  expressly  given  by  the  incorporating 
act.  It  has  no  more  power  than  any  other  stockholder  to  the 
same  extent.  .  .  . 

If  these  positions  be  correct,  is  there  not  an  end  to  this  con- 
troversy? If  the  Bank  of  the  Commonwealth  is  not  the  State, 
nor  the  agent  of  the  State ;  if  it  possess  no  more  power  than  is 
given  to  it  in  the  act  of  incorporation,  and  precisely  the  same 
as  if  the  stock  were  owned  by  private  individuals,  how  can  it  be 
contended  that  the  notes  of  the  bank  can  be  called  bills  of  credit, 
in  contradistinction  from  the  notes  of  other  banks?  If,  in  be- 
coming an  exclusive  stockholder  in  this  bank,  the  State  imparts 
to  it  none  of  its  attributes  of  sovereignty ;  if  it  holds  the  stock 
as  any  other  stockholder  would  hold  it,  how  can  it  be  said  to 
emit  bills  of  credit?  Is  it  not  essential  to  constitute  a  bill  of 
credit  within  the  constitution,  that  it  should  be  emitted  by  a 
State?  Under  its  charter  the  bank  has  no  power  to  emit  bills 
which  have  the  impress  of  the  sovereignty,  or  which  contain  a 
pledge  of  its  faith.  It  is  a  simple  corporation,  acting  within 
the  sphere  of  its  corporate  powers,  and  can  no  more  transcend 
them  than  any  other  banking  institution.  The  State,  as  a  stock- 
holder, bears  the  same  relation  to  the  bank  as  any  other- stock- 
holder. 

The  funds  of  the  bank  and  its  property,  of  every  description, 
are  held  responsible  for  the  payment  of  its  debts,  and  may  be 
reached  by  legal  or  equitable  process.  In  this  respect,  it  can 
claim  no  exemption  under  the  prerogatives  of  the  States.  And 
if,  in  the  course  of  its  operations,  its  notes  have  depreciated  like 
the  notes  of  other  banks,  under  the  pressure  of  circumstances, 


JUILLIARD  v.  GREENMAN.  195 

still  it  must  stand  or  fall  by  its  charter.  In  this  its  powers  are 
defined,  and  its  rights,  and  the  rights  of  those  who  give  credit 
to  it,  are  guaranteed.  And  even  an  abuse  of  its  powers,  through 
which  its  credit  has  been  impaired  and  the  community  injured, 
cannot  be  considered  in  this  case. 

We  are  of  the  opinion  that  the  act  incorporating  the  Bank 
of  the  Commonwealth  was  a  constitutional  exercise  of  power  by 
the  State  of  Kentucky,  and,  consequently,  that  the  notes  issued 
by  the  bank  are  not  bills  of  credit  within  the  meaning  of  the 
federal  constitution.  The  judgment  of  the  court  of  appeals  is 
therefore  affirmed,  with  interest  and  costs.  .  .  . 

THOMPSON,   J.,    concurring.    .    .    .    STORY,   J.,   dissenting. 


NOTE. — Accord:  Woodruff  v.  Trapnall  (1851),  10  Howard,  190;  Dar- 
lington v.  Bank  of  Alabama  (1851),  13  Howard,  12.  Compare  Poindexter 
v.  Greenhow  (1885),  114  U.  8.  270;  Houston  &c.  By.  v.  Texas  (1900),  177 
U.  8.  66.  The  principal  case  was  first  argued  in  1834,  when  three  of  the 
five  judges  who  heard  it  thought  it  was  controlled  by  Craig  v.  Missouri 
Among  the  three  were  Marshall  and  Story.  It  was  the  rule  of  the  Court 
not  to  pronounce  a  State  law  invalid  unless  a  majority  of  the  Court  should 
concur.  Hence  no  decision  was  rendered.  When  the  case  came  up  again  in 
1837,  Marshall  had  died  and  two  new  judges  had  been  appointed.  The 
second  argument  proceeded  on  exactly  the  same  ground  as  the  first,  but 
only  Story  adhered  to  the  original  view  of  the  majority  of  the  Court.  See 
his  strong  dissenting  opinion.  For  an  interesting  discussion  of  the  con- 
nection of  the  decision  with  wild-cat  banking  and  the  legal  tender  question, 
see  Sumner,  Jackson,  ch.  VI. 


SECTION  2.    LEGAL.  TENDER  NOTES. 

The  Congress  shall  have  power    .     .     . 

To  borrow  money  on  the  credit  of  the  United  States;     .    .    . 

To  coin  money,  regulate  the  value  thereof,  and  of  foreign  coin. 

Constitution  of  the  United  State*,  Art.  I,  tee.  8. 

No  State  shall  .  .  .  coin  money;  emit  bills  of  credit; 
make  anything  but  gold  and  silver  coin  a  tender  in  payment  of 
debts. 

Constitution  of  the  United  States,  Art.  1,  tee.  9. 

JUILLIARD  v.  GREENMAN. 

SUPREME  COURT  OF  THE  UNITED  STATES.    1884. 
110  U.  8.  421;  28  Lawyers'  Ed.  204. 

[By  the  acts  of  February  25,  1862,  July  11,  1862,  and  March 
3, 1863,  Congress  authorized  the  issue  of  notes  which  should  "be 


196  CASES  ON  CONSTITUTIONAL  LAW. 

lawful  money  and  a  legal  tender  in  payment  of  all  debts,  pub- 
lic and  private,  within  the  United  States,"  except  for  duties  on 
imports  and  interest  on  the  public  debt.  By  the  act  of  Jan- 
uary 14,  1875,  the  Secretary  of  the  Treasury  was  authorized  to 
redeem  the  legal  tender  notes  then  outstanding.  By  the  act  of 
May  31,  1878,  entitled  "An  act  to  forbid  the  further  retirement 
of  United  States  legal  tender  notes, ' '  it  was  provided : 

' '  From  and  after  the  passage  of  this  act  it  shall  not  be  lawful 
for  the  Secretary  of  the  Treasury  or  other  officer  under  him  to 
cancel  or  retire  any  more  of  the  United  States  legal  tender  notes. 
And  when  any  of  said  notes  may  be  redeemed  or  be  received  into 
the  Treasury  under  any  law  from  any  source  whatever  and  shall 
belong  to  the  United  States,  they  shall  not  be  retired,  cancelled, 
or  destroyed,  but  they  shall  be  reissued  and  paid  out  again  and 
kept  in  circulation." 

The  defendant  in  the  present  action,  being  indebted  to  the 
plaintiff  in  the  sum  of  $5,122.90,  offered  in  payment  thereof 
$22.90  in  gold  and  silver  coin  and  $5,100  in  legal  tender  notes 
which  had  been  redeemed  and  reissued  in  pursuance  of  the  act 
of  1878.  The  plaintiff  refused  to  receive  the  notes  and  brought 
suit  for  the  sum  due.  The  Circuit  Court  gave  judgment  for 
the  defendant,  whereupon  the  plaintiff  sued  out  a  writ  of  error.] 

MB.  JUSTICE  GRAY  delivered  the  opinion  of  the  court.     .     .     . 

The  manifest  intention  of  this  act  is  that  the  notes  which  it 
directs,  after  having  been  redeemed,  to  be  reissued  and  kept  in 
circulation,  shall  retain  their  original  quality  of  being  a  legal 
tender. 

The  single  question,  therefore,  to  be  considered,  and  upon  the 
answer  to  which  the  judgment  to  be  rendered  between  these  par- 
ties depends,  is  whether  notes  of  the  United  States,  issued  in  time 
of  war,  under  acts  of  Congress  declaring  them  to  be  a  legal 
tender  in  payment  of  private  debts,  and  afterwards  in  time  of 
peace  redeemed  and  paid  in  gold  coin  at  the  Treasury,  and  then 
reissued  under  the  act  of  1878,  can,  under  the  Constitution  of 
the  United  States,  be  a  legal  tender  in  payment  of  such  debts. 

By  the  Articles  of  Confederation  of  1777,  the  United  States  in 
Congress  assembled  were  authorized  "to  borrow  money  or  emit 
bills  on  the  credit  of  the  United  States;"  but  it  was  declared 
that  "each  State  retains  its  sovereignty,  freedom  and  independ- 
ence, and  every  power,  jurisdiction  and  right  which  is  not  by 
this  confederation  expressly  delegated  to  the  United  States  in 


JUILLIARD  v.  GREENMAN.  197 

Congress  assembled."  Art.  2,  art.  9,  §5;  1  Stat.,  4,  7.  Yet, 
upon  the  question  whether,  under  those  articles,  Congress,  by 
virtue  of  the  power  to  emit  bills  on  the  credit  of  the  United 
States,  had  the  power  to  make  bills  so  emitted  a  legal  tender, 
Chief  Justice  Marshall  spoke  very  guardedly,  saying:  "Con- 
gress emitted  bills  of  credit  to  a  large  amount,  and  did  not,  per- 
haps could  not,  make  them  a  legal  tender.  This  power  resided 
in  the  States."  Craig  v.  Missouri,  4  Pet.  410,  435.  But  in  the 
Constitution,  as  he  had  bofore  observed  in  McCulloch  v.  Mary- 
land, "there  is  no  phrase  which,  like  the  Articles  of  Confedera- 
tion, excludes  incidental  or  implied  powers;  and  which  requires 
that  everything  granted  shall  be  expressly  and  minutely  de- 
scribed. Even  the  Tenth  Amendment,  which  was  framed  for  the 
purpose  of  quieting  the  excessive  jealousies  which  had  been 
excited,  omits  the  word  'expressly,'  and  declares  only  that  the 
powers  'not  delegated  to  the  United  States,  nor  prohibited  to 
the  States,  are  reserved  to  the  States  or  to  the  people;'  thus  leav- 
ing the  question,  whether  the  particular  power  which  may  be- 
come the  subject  of  contest  has  been  delegated  to  the  one  gov- 
ernment or  prohibited  to  the  other,  to  depend  on  a  fair  con- 
struction of  the  whole  instrument  The  men  who  drew  and 
adopted  this  amendment  had  experienced  the  embarrassments 
resulting  from  the  insertion  of  this  word  in  the  Articles  of  Con- 
federation, and  probably  omitted  it  to  avoid  those  embarrass- 
ments." 4  Wheat.  406,  407.  .  .  . 

Such  reports  as  have  come  down  to  us  of  the  debates  in  the 
Convention  that  framed  the  Constitution  afford  no  proof  of  any 
general  concurrence  of  opinion  upon  the  subject  before  us.  The 
adoption  of  the  motion  to  strike  out  the  words  "and  emit  bills" 
from  the  clause  ' '  to  borrow  money  and  emit  bills  on  the  credit  of 
the  United  States"  is  quite  inconclusive.  The  philippic  delivered 
before  the  Assembly  of  Maryland  by  Mr.  Martin,  one  of  the 
delegates  from  that  State,  who  voted  against  the  motion,  and 
who  declined  to  sign  the  Constitution,  can  hardly  be  accepted  as 
satisfactory  evidence  of  the  reasons  or  the  motives  of  the  major- 
ity of  the  Convention.  See  1  Elliot's  Debates,  345,  370,  376. 
Some  of  the  members  of  the  Convention,  indeed,  as  appears  by 
Mr.  Madison's  minutes  of  the  debates,  expressed  the  strongest 
opposition  to  paper  money.  And  Mr.  Madison  has  disclosed  the 
grounds  of  his  own  action,  by  recording  that  "this  vote  in  the 
affirmative  by  Virginia  was  occasioned  by  the  acquiescence  of  Mr. 
Madison,  who  became  satisfied  that  striking  out  the  words  would 
not  disable  the  government  from  the  use  of  public  notes,  so  far 


198  CASES  ON  CONSTITUTIONAL  LAW. 

as  they  could  be  safe  and  proper;  and  would  only  cut  off  the 
pretext  for  a  paper  currency,  and  particularly  for  making  the 
bills  a  tender,  either  for  public  or  private  debts."  But  he  has 
not  explained  why  he  thought  that  striking  out  the  words  "and 
emit  bills"  would  leave  the  power  to  emit  bills,  and  deny  the 
power  to  make  them  a  tender  in  payment  of  debts.  And  it  can- 
not be  known  how  many  of  the  other  delegates,  by  whose  vote 
the  motion  was  adopted,  intended  neither  to  proclaim  nor  to 
deny  the  power  to  emit  paper  money,  and  were  influenced  by 
the  argument  of  Mr.  Gorham,  who  "was  for  striking  out,  with- 
out inserting  any  prohibition,"  and  who  said:  "If  the  words 
stand,  they  may  suggest  and  lead  to  the  emission. "  "  The  power, 
so  far  as  it  will  be  necessary  or  safe,  will  be  involved  in  that  of 
borrowing."  5  Elliot's  Debates,  434,  435,  and  note.  And  after 
the  first  clause  of  the  tenth  section  of  the  first  article  had  been 
reported  in  the  form  in  which  it  now  stands,  forbidding  the 
States  to  make  anything  but  gold  or  silver  coin  a  tender  in  pay- 
ment of  debts,  or  to  pass  any  law  impairing  the  obligation  of 
contracts,  when  Mr.  Gerry,  as  reported  by  Mr.  Madison,  "en- 
tered into  observations  inculcating  the  importance  of  public 
faith,  and  the  propriety  of  the  restraint  put  on  the  States  from 
impairing  the  obligation  of  contracts,  alleging  that  Congress 
ought  to  be  laid  under  the  like  prohibitions,"  and  made  a  mo- 
tion to  that  effect,  he  was  not  seconded.  Ib.,  546.  As  an  illus- 
tration of  the  danger  of  giving  too  much  weight,  upon  such  a 
question,  to  the  debates  and  the  votes  in  the  Convention,  it  may 
also  be  observed  that  propositions  to  authorize  Congress  to 
grant  charters  of  incorporation  for  national  objects  were  strong- 
ly opposed,  especially  as  regarded  banks,  and  defeated.  Ib.,  440, 
543,  544.  The  power  of  Congress  to  emit  bills  of  credit,  as  well 
as  to  incorporate  national  banks,  is  now  clearly  established  by 
decisions  to  which  we  shall  presently  refer. 

The  words  "to  borrow  money,"  as  used  in  the  Constitution, 
to  designate  a  power  vested  in  the  national  government,  for  the 
safety  and  welfare  of  the  whole  people,  are  not  to  receive  that 
limited  and  restricted  interpretation  and  meaning  which  they 
would  have  in  a  penal  statute,  or  in  an  authority  conferred, 
by  law  or  by  contract,  upon  trustees  or  agents  for  private  pur- 
poses. 

The  power  "to  borrow  money  on  the  credit  of  the  United 
States"  is  the  power  to  raise  money  for  the  public  use  on  a 
pledge  of  the  public  credit,  and  may  be  exercised  to  meet  either 
present  or  anticipated  expenses  and  liabilities  of  the  govern- 


JUILLIARD  v.  GREENMAN.  199 

ment.  It  includes  the  power  to  issue,  in  return  for  the  money 
borrowed,  the  obligations  of  the  rnited  States  in  any  appro- 
priate form,  of  stock,  bonds,  bills,  or  notes;  and  in  whatever 
form  they  are  issued,  being  instruments  of  the  national  gov- 
ernment, they  are  exempt  from  taxation  by  the  governments 
of  the  several  States.  Weston  v.  Charleston  City  Council,  2  Pet 
449;  Banks  v.  Mayor,  7  Wall.  16;  Bank  v.  Supervisors,  7  Wall. 
26.  Congress  has  authority  to  issue  these  obligations  in  a  form 
adapted  to  circulation  from  hand  to  hand  in  the  ordinary  trans- 
actions of  commerce  and  business.  In  order  to  promote  and 
facilitate  such  circulation,  to  adapt  them  to  use  as  currency, 
and  to  make  them  more  current  in  the  market,  it  may  provide 
for  their  redemption  in  coin  or  bonds,  and  may  make  them  re- 
ceivable in  payment  of  debts  to  the  government.  So  much  is 
settled  beyond  doubt,  and  was  asserted  or  distinctly  admitted 
by  the  judges  who  dissented  from  the  decision  in  the  Legal  Ten- 
der Cases,  as  well  as  by  those  who  concurred  in  that  decision. 
Veazie  Bank  v.  Fenno,  8  Wall.  533,  548;  Hepburn  v.  Griswold, 
8  Wall.  616,  636;  Legal  Tender  Cases,  12  Wall.  543,  544,  560, 
582,  610,  613,  637. 

It  is  equally  well  settled  that  Congress  has  the  power  to  in- 
corporate national  banks,  with  the  capacity,  for  their  own  profit 
as  well  as  for  the  use  of  the  government  in  its  money  trans- 
actions, of  issuing  bills  which  under  ordinary  circumstances 
pass  from  hand  to  hand  as  money  at  their  nominal  value,  and 
which,  when  so  current,  the  law  has  always  recognized  as  a  good 
tender  in  payment  of  money  debts,  unless  specifically  objected 
to  at  the  time  of  the  tender.  United  States  Bank  v.  Bank  of 
Georgia,  10  Wheat.  333,  347 ;  Ward  v.  Smith,  7  Wall.  447,  451. 
The  power  of  Congress  to  charter  a  bank  was  maintained  in 
McCulloch  v.  Maryland,  4  Wheat.  316,  and  in  Osborn  v.  United 
States  Bank,  9  Wheat.  738,  chiefly  upon  the  ground  that  it  was 
an  appropriate  means  for  carrying  on  the  money  transactions 
of  the  government.  But  Chief  Justice  Marshall  said:  "The 
currency  which  it  circulates,  by  means  of  its  trade  with  individ- 
uals, is  believed  to  make  it  a  more  fit  instrument  for  the  purposes 
of  government  than  it  could  otherwise  be;  and  if  this  be  true, 
the  capacity  to  carry  on  this  trade  is  a  faculty  indispensable  to 
the^character  and  objects  of  the  institution."  9  Wheat.  864.  And 
Mr.  Justice  Johnson,  who  concurred  with  the  rest  of  the  court 
in  upholding  the  power  to  incorporate  a  bank,  gave  the  further 
reason  that  it  tended  to  give  effect  to  "that  power  over  the  cur- 


200  CASES  ON  CONSTITUTIONAL  LAW. 

rency  of  the  country,  which  the  framers  of  the  Constitution  evi- 
dently intended  to  give  to  Congress  alone."  Ib.,  873. 

The  constitutional  authority  of  Congress  to  provide  a  cur- 
rency for  the  whole  country  is  now  firmly  established.  In  Vea- 
zie  Bank  v.  Fenno,  8  Wall.  533,  548,  Chief  Justice  Chase,  in  de- 
livering the  opinion  of  the  court,  said:  "It  cannot  be  doubted 
that  under  the  Constitution  the  power  to  provide  a  circulation  of 
coin  is  given  to  Congress.  And  it  is  settled  by  the  uniform 
practice  of  the  government,  and  by  repeated  decisions,  that 
Congress ,  may  constitutionally  authorize  the  emission  of  bills 
of  credit."  Congress,  having  undertaken  to  supply  a  national 
currency,  consisting  of  coin,  of  treasury  notes  of  the  United 
States,  and  of  the  bills  of  national  banks,  is  authorized  to  im- 
pose on  all  State  banks,  or  national  banks,  or  private  bankers, 
paying  out  the  notes  of  individuals  or  of  State  banks,  a  tax  of 
ten  per  cent,  upon  the  amount  of  such  notes  so  paid  out.  Veazie 
Bank  v.  Fenno,  above  cited;  National  Bank  v.  United  States, 
101  U.  S.  1.  The  reason  for  this  conclusion  was  stated  by  Chief 
Justice  Chase,  and  repeated  by  the  present  Chief  Justice,  in 
these  words:  ''Having  thus,  in  the  exercise  of  undisputed  con- 
stitutional powers,  undertaken  to  provide  a  currency  for  the 
whole  country,  it  cannot  be  questioned  that  Congress  may,  con- 
stitutionally, secure  the  benefit  of  it  to  the  people  by  appro- 
priate legislation.  To  this  end,  Congress  has  denied  the  quality 
of  legal  tender  to  foreign  coins,  and  has  provided  by  law  against 
the  imposition  of  counterfeit  and  base  coin  on  the  community. 
To  the  same  end,  Congress  may  restrain,  by  suitable  enactments, 
the  circulation  as  money  of  any  notes  not  issued  under  its  own 
authority.  Without  this  power,  indeed,  its  attempts  to  secure 
a  sound  and  uniform  currency  for  the  country  must  be  futile." 
8  Wall.  549;  101  U.  S.  6. 

By  the  Constitution  of  the  United  States,  the  several  States 
are  prohibited  from  coining  money,  emitting  bills  of  credit,  or 
making  anything  but  gold  and  silver  coin  a  tender  in  payment 
of  debts.  But  no  intention  can  be  inferred  from  this  to  deny  to 
Congress  either  of  these  powers.  Most  of  the  powers  granted  to 
Congress  are  described  in  the  eighth  section  of  the  first  article ; 
the  limitations  intended  to  be  set  to  its  powers,  so  as  to  exclude 
certain  things  which  might  otherwise  be  taken  to  be  included 
in  the  general  grant,  are  defined  in  the  ninth  section ;  the  tenth 
section  is  addressed  to  the  States  only.  This  section  prohibits 
the  States  from  doing  some  things  which  the  United  States  are 
expressly  prohibited  from  doing,  as  well  as  from  doing  some 


JUILLIARD  v.  GREEXMAN.  201 

things  which  the  United  States  are  expressly  authorized  to  do, 
and  from  doing  some  things  which  are  neither  expressly  granted 
nor  expressly  denied  to  the  United  States.  Congress  and  the 
States  equally  are  expressly  prohibited  from  passing  any  bill  of 
attainder  or  ex  post  facto  law,  or  granting  any  title  of  nobil- 
ity. The  States  are  forbidden,  while  the  President  and  Senate 
are  expressly  authorized,  to  make  treaties.  The  States  are  for- 
bidden, but  Congress  is  expressly  authorized  to  coin  money. 
The  States  are  prohibited  from  emitting  bills  of  credit;  but 
Congress,  which  is  neither  expressly  authorized  nor  expressly 
forbidden  to  do  so,  has,  as  we  have  already  seen,  been  held  to 
have  the  power  of  emitting  bills  of  credit,  and  of  making  every 
provision  for  their  circulation  as  currency,  short  of  giving  them 
the  quality  of  legal  tender  for  private  debts — even  by  those 
who  have  denied  its  authority  to  give  them  this  quality. 

It  appears  to  us  to  follow,  as  a  logical  and  necessary  conse- 
quence, that  Congress  has  the  power  to  issue  the  obligations  of 
the  United  States  in  such  form,  and  to  impress  upon  them  such 
qualities  as  currency  for  the  purchase  of  merchandise  and  the 
payment  of  debts,  as  accord  with  the  usage  of  sovereign  govern- 
ments. The  power,  as  incident  to  the  power  of  borrowing  money 
and  issuing  bills  or  notes  of  the  government  for  money  bor- 
rowed, of  impressing  upon  those  bills  or  notes  the  quality  of 
being  a  legal  tender  for  the  payment  of  private  debts,  was  a 
power  universally  understood  to  belong  to  sovereignty,  in  Eu- 
rope and  America,  at  the  time  of  the  framing  and  adoption  of 
the  Constitution  of  the  United  States.  The  governments  of 
Europe,  acting  through  the  monarch  or  the  legislature,  accord- 
ing to  the  distribution  of  powers  under  their  respective  con- 
stitutions, had  and  have  as  sovereign  a  power  of  issuing  paper 
money  as  of  stamping  coin.  This  power  has  been  distinctly  rec- 
ognized in  an  important  modern  case,  ably  argued  and  fully  con- 
sidered, in  which  the  Emperor  of  Austria,  as  King  of  Hungary, 
obtained  from  the  English  Court  of  Chancery  an  injunction 
against  the  issue  in  England,  without  his  license,  of  notes  pur- 
porting to  be  public  paper  money  of  Hungary.  Austria  v.  Day, 
2  Giff.  628,  and  3  D.  F.  &  J.  217.  The  power  of  issuing  bills  of 
credit,  and  making  them,  at  the  discretion  of  the  legislature,  a 
tender  in  payment  of  private  debts,  had  long  been  exercised  in 
this  country  by  the  several  Colonies  and  States ;  and  during  the 
Revolutionary  War  the  States,  upon  the  recommendation  of  the 
Congress  of  the  Confederation,  had  made  the  bills  issued  by 
Congress  a  legal  tender.  See  Craig  v.  Missouri,  4  Pet.  435,  453 ; 


202  CASES  ON  CONSTITUTIONAL  LAW. 

Briscoe  v.  Bank  of  Kentucky,  11  Pet.  257,  313,  334-336 ;  Legal 
Tender  Cases,  12  Wall.  557,  558,  622;  Phillips  on  American 
Paper  Currency,  passim.  The  exercise  of  this  power  not  being 
prohibited  to  Congress  by  the  Constitution,  it  is  included  in  the 
power  expressly  granted  to  borrow  money  on  the  credit  of  the 
United  States. 

This  position  is  fortified  by  the  fact  that  Congress  is  vested 
with  the  exclusive  exercise  of  the  analogous  power  of  coining 
money  and  regulating  the  value  of  domestic  and  foreign  coin, 
and  also  with  the  paramount  power  of  regulating  foreign  and 
interstate  commerce.  Under  the  power  to  borrow  money  on  the 
credit  of  the  United  States,  and  to  issue  circulating  notes  for  the 
money  borrowed,  its  power  to  define  the  quality  and  force  of 
those  notes  as  currency  is  as  broad  as  the  like  power  over  a 
metallic  currency  under  the  power  to  coin  money  and  to  regu- 
late the  value  thereof.  Under  the  two  powers,  taken  together, 
Congress  is  authorized  to  establish  a  national  currency,  either 
in  coin  or  in  paper,  and  to  make  that  currency  lawful  money 
for  all  purposes,  as  regards  the  national  government  or  private 
individuals. 

The  power  of  making  the  notes  of  the  United  States  a  legal 
tender  in  payment  of  private  debts,  being  included  in  the  power 
to  borrow  money  and  to  provide  a  national  currency  is  not  de- 
feated or  restricted  by  the  fact  that  its  exercise  may  affect  the 
value  of  private  contracts.  If,  upon  a  just  and  fair  interpre- 
tation of  the  whole  Constitution,  a  particular  power  or  authority 
appears  to  be  vested  in  Congress,  it  is  no  constitutional  objec- 
tion to  its  existence,  or  to  its  exercise,  that  the  property  or  the 
contracts  of  individuals  may- be  incidentally  affected.  The  de- 
cisions of  this  court,  already  cited,  afford  several  examples  of 
this. 

Upon  the  issue  of  stock,  bonds,  bills,  or  notes  of  the  United 
States,  the  States  are  deprived  of  their  power  of  taxation  to  the 
extent  of  the  property  invested  by  individuals  in  such  obliga- 
tions, and  the  burden  of  State  taxation  upon  other  private  prop- 
erty is  correspondingly  increased.  The  ten  per  cent,  tax,  imposed 
by  Congress  on  notes  of  State  banks  and  of  private  bankers,  not 
only  lessens  the  value  of  such  notes,  but  tends  to  drive  them,  and 
all  State  banks  of  issue,  out  of  existence.  The  priority  given  to 
debts  due  to  the  United  States  over  the  private  debts  of  an  in- 
solvent debtor  diminishes  the  value  of  these  debts,  and  the 
amount  which  their  holders  may  receive  out  of  the  debtor's 
estate. 


JUILLIARD  v.  GREENMAN.  203 

So,  under  the  power  to  coin  money  and  to  regulate  its  value, 
Congress  may  (as  it  did  with  regard  to  gold  by  the  act  of  June 
28,  1834,  c.  95,  and  with  regard  to  silver  by  the  act  of  Feb- 
ruary 28,  1878,  c.  20)  issue  coins  of  the  same  denominations  as 
those  already  current  by  law,  but  of  less  intrinsic  value  than 
those,  by  reason  of  containing  a  less  weight  of  the  precious 
metals,  and  thereby  enable  debtors  to  discharge  their  debts  by 
the  payment  of  coins  of  the  less  real  value.  A  contract  to  pay 
a  certain  sum  in  money,  without  any  stipulation  as  to  the  kind 
of  money  in  which  it  shall.be  paid,  may  always  be  satisfied  by 
payment  of  that  sum  in  any  currency  which  is  lawful  money 
at  the  place  and  time  at  which  payment  is  to  be  made.  1  Hale 
P.  C.  192-194 ;  Bac.  Ab.  Tender,  B.  2 ;  Pothier,  Contract  of  Sale, 
No.  416;  Pardessus,  Droit  Commercial,  Nos.  204,  205;  Searight 
v.  Calbraith,  4  Dall.  324.  As  observed  by  Mr.  Justice  Strong, 
in  delivering  the  opinion  of  the  court  in  the  Legal  Tender  Cases, 
' '  Every  contract  for  the  payment  of  money,  simply,  is  necessarily 
subject  to  the  constitutional  power  of  the  government  over  the 
currency,  whatever  that  power  may  be,  and  the  obligation  of  the 
parties  is,  therefore,  assumed  with  reference  to  that  power." 
12  Wall.  549. 

Congress,  as  the  legislature  of  a  sovereign  nation,  being  ex- 
pressly empowered  by  the  Constitution,  "to  lay  and  collect 
taxes,  to  pay  the  debts  and  provide  for  the  common  defense  and 
general  welfare  of  the  United  States,"  and  "to  borrow  money 
on  the  credit  of  the  United  States,"  and  "to  coin  money  and 
regulate  the  value  thereof  and  of  foreign  coin ;"  and  being  clear- 
ly authorized,  as  incidental  to  the  exercise  of  those  great  pow- 
ers, to  emit  bills  of  credit,  to  charter  national  banks,  and  to 
provide  a  national  currency  for  the  whole  people,  in  the  form  of 
coin,  treasury  notes,  and  national  bank  bills;  and  the  power  to 
make  the  notes  of  the  government  a  legal  tender  in  payment  of 
private  debts  being  one  of  the  powers  belonging  to  sovereignty 
in  other  civilized  nations,  and  not  expressly  withheld  from  Con- 
gress by  the  Constitution ;  we  are  irresistibly  impelled  to  the  con- 
clusion that  the  impressing  upon  the  treasury  notes  of  the  United 
States  the  quality  of  being  a  legal  tender  in  payment  of  private 
debts  is  an  appropriate  means,  conducive  and  plainly  adapted 
to  the  execution  of  the  undoubted  powers  of  Congress,  consis- 
tent with  the  letter  and  spirit  of  the  Constitution,  and  there- 
fore, within  the  meaning  of  that  instrument,  "necessary  and 
proper  for  carrying  into  execution  the  powers  vested  by  this 
Constitution  in  the  government  of  the  United  States." 


204  CASES  ON  CONSTITUTIONAL  LAW. 

Such  being  our  conclusion  in  matter  of  law,  the  question 
whether  at  any  particular  time,  in  war  or  in  peace,  the  exigency 
is  such,  by  reason  of  unusual  and  pressing  demands  on  the  re- 
sources of  the  government,  or  of  the  inadequacy  of  the  supply 
of  gold  and  silver  coin  to  furnish  the  currency  needed  for  the 
uses  of  the  government  and  of  the  people,  that  it  is,  as  matter  of 
fact,  wise  and  expedient  to  resort  to  this  means,  is  a  political 
question,  to  be  determined  by  Congress  when  the  question  of 
exigency  arises,  and  not  a  judicial  question,  to  be  afterwards 
passed  upon  by  the  courts.  To  quote  once  more  from  the  judg- 
ment in  McCulloch  v.  Maryland:  "Where  the  law  is  not  pro- 
hibited, and  is  really  calculated  to  effect  any  one  of  the  objects 
intrusted  to  the  government,  to  undertake  here  to  inquire  into 
the  degree  of  its  necessity  would  be  to  pass  the  line  which  cir- 
cumscribes the  judicial  department,  and  to  tread  on  legislative 
ground."  4  Wheat.  423. 

It  follows  that  the  act  of  May  31, 1878,  c.  146,  is  constitutional 
and  valid;  and  that  the  Circuit  Court  rightly  held  that  the  ten- 
der in  treasury  notes,  reissued  and  kept  in  circulation  under 
that  act,  was  a  tender  of  lawful  money  in  payment  of  the  de- 
fendant's debt  to  the  plaintiff.  Judgment  affirmed. 

MR.  JUSTICE  FIELD,  dissenting.     .    .    . 

NOTE. — The  legal  tender  question  was  before  the  Supreme  Court  in 
three  important  cases.  The  first  one,  Hepburn  v.  Griswold  (1870),  8  Wallace, 
603,  involved  the  validity  of  the  legal  tender  acts  as  applied  to  the  payment 
of  debts  contracted  before  their  passage.  The  opinion  holding  the  acts 
invalid  was  written  by  Chief  Justice  Chase,  who  was  himself,  as  Secretary  of 
the  Treasury,  the  author  of  the  acts  in  question.  The  opinion  contains  a 
valuable  resumfi  of  the  financial  legislation  of  the  Civil  war.  When  the 
question  came  before  the  Court  again  in  the  Legal  Tender  Cases  (1871), 
12  Wallace,  457,  the  previous  decision  was  overruled,  and  the  legal  tender 
acts,  which  were  passed  in  the  midst  of  the  Civil  war,  were  held  to  be  a 
valid  exercise  of  the  war  power,  and  to  apply  to  debts  contracted  both  before 
and  after  their  enactment.  There  were  four  dissenting  justices,  among 
them  Chief  Justice  Chase.  The  concurring  opinion  of  Justice  Bradley, 
part  of  which  is  quoted  ante  page  37,  foreshadows  the  opinion  in  the 
principal  case. 

As  to  the  effect  of  the  legal  tender  acts  on  contracts  specifically  pro- 
viding for  payment  in  coin,  see  Bronson  v.  Rodes  (1869),  7  Wallace,  229, 
and  Trebilcock  v.  Wilson  (1871),  12  Wallace,  687.  As  to  their  effect  on 
State  laws  requiring  payment  of  taxes  in  coin,  see  Lane  County  v.  Oregon 
(1869),  7  Wallace,  71.  For  a  valuable  discussion  of  the  legal  tender  ques- 
tion in  both  its  historical  and  legal  aspects,  see  J.  B.  Thayer,  ' '  Legal  Ten- 
der, ' '  in  Harvard  Law  Eeview,  I,  73,  reprinted  in  his  Legal  Essays,  60,  and 
partly  in  his  Cases  on  Constitutional  Law,  II,  2267. 


CHAPTER  VI.  ^^ 

TAXATION. 

t   .  f 

The  Congress  shall  have  power  to  lay  and  collect  taxes,  duties, 

imposts  and  excises,  to  pay  the  debts  and  provide  for  the  common 

defense  and  general  welfare  of  the  United  States;  but  all  duties, 

imposts,  and  excises  shall  be  uniform  throughout  the  United  States. 

V  Constitution  of  the  United  State*,  Art.  1,  tee.  8. 

No  tax  or  duty  shall  be  laid  on  articles  exported  from  any 
State. 

Constitution  of  the  United  States,  Art.  1,  tee.  9. 

No  State  shall,  without  the  consent  of  Congress,  lay  any  im- 
posts or  duties  on  imports  or  exports,  except  what  may  be  abso- 
lutely necessary  for  executing  its  inspection  laws;  and  the  net 
produce  of  all  duties  and  imposts,  laid  by  any  State  on  imports  or 
exports,  shall  be  for  the  use  of  the  Treasury  of  the  United  States; 
and  all  such  laws  shall  be  subject  to  the  review  and  control  of 
Congress. 

Constitution  of  the  United  States,  Art.  I,  tee.  10. 

SECTION  1.    WHAT  is  A  TAX. 

LOAN  ASSOCIATION  v.  TOPEKA. 

SUPREME  COURT  or  THE  UNITED  STATES.    1874. 
20  Wallace,  655;  22  Lawyers'  Ed.  455. 

Error  to  the  Circuit  Court  for  the  District  of  Kansas. 

[Acting  under  authority  of  an  act  of  the  legislature  of  Kan- 
sas, the  City  of  Topeka  issued  its  bonds  to  the  amount  of  $100,000 
which  it  presented  to  a  company  for  the  purpose  of  encouraging 
it  in  its  design  of  establishing  a  manufactory  of  iron  bridges  in 
that  city.  The  interest  coupons  first  due  were  paid  out  of  a 
fund  raised  by  taxation  for  that  purpose.  Afterward  the  Citi- 
zens Saving  and  Loan  Association  of  Cleveland,  Ohio,  purchased 
the  bonds,  and  brought  suit  for  interest  due  thereon.  The  city 
demurred,  and  this  raised  for  consideration  the  question  of  the 
authority  of  the  legislature  of  Kansas  to  enact  the  statute  under 


'TE.  —  At  this  point  the  student  should  be  reminded  that  the 
matter  of  this  and  the  following  chapters  is  closely  related,  and  a  question 
arising  under  any  of  these  heads  may  require  consideration  from  the  stand- 
point of  one  or  more  of  the  others. 

205 


206  CASES  ON  CONSTITUTIONAL  LAW. 

which  the  city  acted.    The  court  below  sustained  the  demurrer, 
and  to  its  judgment  a  writ  of  error  was  taken.] 

MR.  JUSTICE  MILLER  delivered  the  opinion  of  the  court.    .    .    . 

We  find  ample  reason  to  sustain  the  demurrer  on  the  second 
ground  on  which  it  is  argued  by  counsel  and  sustained  by  the 
Circuit  Court. 

That  proposition  is  that  the  act  authorizes  the  towns  and 
other  municipalities  to  which  it  applies,  by  issuing  bonds  or  loan- 
ing their  credit,  to  take  the  property  of  the  citizen  under  the 
guise  of  taxation  to  pay  these  bonds,  and  use  it  in  aid  of  the 
enterprises  of  others  which  are  not  of  a  public  character,  thus 
perverting  the  right  of  taxation,  which  can  only  be  exercised  for 
a  public  use,  to  the  aid  of  individual  interests  and  personal  pur- 
poses of  profit  and  gain. 

The  proposition  as  thus  broadly  stated  is  not  new,  nor  is  the 
question  which  it  raises  difficult  of  solution. 

If  these  municipal  corporations,  which  are  in  fact  subdivisions 
of  the  State,  and  whicli  for  many  reasons  are  vested  with  quasi- 
legislative  powers,  have  a  fund  or  other  property  out  of  which 
they  can  pay  the  debts  which  they  contract,  without  resort  to 
taxation,  it  may  be  within  the  power  of  the  legislature  of  the 
State  to  authorize  them  to  use  it  in  aid  of  projects  strictly  pri- 
vate or  personal,  but  which  would  in  a  secondary  manner  con- 
tribute to  the  public  good ;  or  where  there  is  property  or  money 
vested  in  a  corporation  of  the  kind  for  a  particular  use,  as  pub- 
lic worship  or  charity,  the  legislature  may  pass  laws  authoriz- 
ing them  to  make  contracts  in  reference  to  this  property,  and 
incur  debts  payable  from  that -source. 

But  such  instances  are  few  and  exceptional,  and  the  proposi- 
tion is  a  very  broad  one,  that  debts  contracted  by  municipal  cor- 
porations must  be  paid,  if  paid  at  all,  out  of  taxes  which  they 
may  lawfully  levy,  and  that  all  contracts  creating  debts  to  be 
paid  in  future,  not  limited  to  payment  from  some  other  source, 
imply  an  obligation  to  pay  by  taxation.  It  follows  that  in  this 
class  of  cases  the  right  to  contract  must  be  limited  by  the  right 
to  tax,  and  if  in  the  given  case  no  tax  can  lawfully  be  levied  to 
pay  the  debt,  the  contract  itself  is  void  for  want  of  authority 
to  make  it. 

If  this  were  not  so,  these  corporations  could  make  valid  prom- 
ises, which  they  have  no  means  of  fulfilling,  and  on  which  even 
the  legislature  that  created  them  can  confer  no  such  power.  The 


LOAN  ASSOCIATION  v.  TOPEKA.  2  '7 

validity  of  a  contract  which  can  only  be  fulfilled  by  a  resort  to 
taxation  depends  on  the  power  to  levy  the  tax  for  that  purpose. 
Sharpless  v.  Mayor  of  Philadelphia,  21  Pa,  St.  147,  167;  Han- 
son v.  Vernon,  27  Iowa,  28;  Allen  v.  Inhabitants  of  Jay,  60 
Maine,  127;  Lowell  v.  Boston,  Mass.,  Ill  Mass.  454;  Whiting 
v.  Pond  du  Lac,  25  Wis.  188. 

It  is,  therefore,  to  be  inferred  that  when  the  legislature  of  the 
State  authorizes  a  county  or  city  to  contract  a  debt  by  bond,  it 
intends  to  authorize  it  to  levy  such  taxes  as  are  necessary  to 
pay  the  debt,  unless  there  is  in  the  act  itself,  or  in  some  general 
statute,  a  limitation  upon  the  power  of  taxation  which  repels 
such  an  inference. 

With  these  remarks  and  with  the  reference  to  the  authorities 
which  support  them,  we  assume  that  unless  the  legislature  of 
Kansas  had  the  right  to  authorize  the  counties  and  towns  in 
that  State  to  levy  taxes  to  be  used  in  aid  of  manufacturing  en- 
terprises, conducted  by  individuals,  or  private  corporations,  for 
purposes  of  gain,  the  law  is  void,  and  the  bonds  issued  under  it 
are  also  void.  We  proceed  to  the  inquiry  whether  such  a  power 
exists  in  the  legislature  of  the  State  of  Kansas. 

We  have  already  said  the  question  is  not  new.  The  subject  of 
the  aid  voted  to  railways  by  counties  and  towns  has  been  brought 
to  the  attention  of  the  courts  of  almost  every  State  in  the  Union. 
It  has  been  thoroughly  discussed  and  is  still  the  subject  of  dis- 
cussion in  those  courts.  It  is  quite  true  that  a  decided  prepon- 
derance of  authority  is  to  be  found  in  favor  of  the  proposition 
that  the  legislatures  of  the  States,  unless  restricted  by  some 
special  provisions  of  their  constitutions,  may  confer  upon  these 
municipal  bodies  the  right  to  take  stock  in  corporations  created 
to  build  railroads,  and  to  lend  their  credit  to  such  corporations. 
Also  to  levy  the  necessary  taxes  on  the  inhabitants,  and  on  prop- 
erty within  their  limits  subject  to  general  taxation,  to  enable 
them  to  pay  the  debts  thus  incurred.  But  very  few  of  these 
courts  have  decided  this  without  a  division  among  the  judges 
of  which  they  were  composed,  while  others  have  decided  against 
the  existence  of  the  power  altogether.  The  State  v.  Wapello  Co., 
9  Iowa,  308 ;  Hanson  v.  Vernon,  27  Id.  28 ;  Sharpless  v.  Mayor, 
etc.,  21  Pa.  St.  147 ;  Whiting  v.  Pond  du  Lac,  25  Wis.  188. 

In  all  these  cases,  however,  the  decision  has  turned  upon  the 
question  whether  the  taxation  by  which  this  aid  was  afforded  to 
the  building  of  railroads  was  for  a  public  purpose.  Those  who 
came  to  the  conclusion  that  it  was,  held  the  laws  for  that  pur- 


208  CASES  ON  CONSTITUTIONAL  LAW. 

pose  valid.  Those  who  could  not  reach  that  conclusion  held  them 
void.  In  all  the  controversy  this  has  been  the  turning  point  of 
the  judgments  of  the  courts.  And  it  is  safe  to  say  that  no  court 
has  held  debts  created  in  aid  of  railroad  companies,  by  counties 
or  towns,  valid  on  any  other  ground  than  that  the  purpose  for' 
which  the  taxes  were  levied  was  a  public  use,  a  purpose  or  object 
which  it  was  the  right  and  the  duty  of  State  governments  to 
assist  by  money  raised  from  the  people  by  taxation.  The  argu- 
ment in  opposition  to  this  power  has  been,  that  railroads  built 
by  corporations  organized  mainly  for  purposes  of  gain — the 
roads  which  they  built  being  under  their  control,  and  not  that 
of  the  State — were  private  and  not  public  roads,  and  the  tax 
assessed  on  the  people  went  to  swell  the  profits  of  individuals 
and  not  to  the  good  of  the  State,  or  the  benefit  of  the  public,  ex- 
cept in  a  remote  and  collateral  way.  On  the  other  hand,  it  was 
said  that  roads,  canals,  bridges,  navigable  streams,  and  all  other 
highways  had  in  all  times  been  matter  of  public  concern.  That 
such  channels  of  travel  and  of  the  carrying  business  had  always 
been  established,  improved,  regulated  by  the  State,  and  that  the 
railroad'  had  not  lost  this  character  because  constructed  by  in- 
dividual enterprise,  aggregated  into  a  corporation. 

We  are  not  prepared  to  say  that  the  latter  view  of  it  is  not 
the  true  one,  especially  as  there  are  other  characteristics  of  a 
public  nature  conferred  on  these  corporations,  such  as  the  power 
to  obtain  right  of  way,  their  subjection  to  the  laws  which  govern 
common  carriers,  and  the  like,  which  seem  to  justify  the  propo- 
sition. Of  the  disastrous  consequences  which  have  followed  its 
recognition  by  the  courts  and  which  were  predicted  when  it  was 
first  established  there  can  be  no  doubt. 

We  have  referred  to  this  history  of  the  contest  over  aid  to  rail- 
roads by  taxation,  to  show  that  the  strongest  advocates  for  the  va- 
lidity of  these  laws  never  placed  it  on  the  ground  of  the  unlimited 
power  in  the  State  legislature  to  tax  the  people,  but  conceded 
that  where  the  purpose  for  which  the  tax  was  to  be  issued,  could 
no~longer  be  justly  claimed  to  have  this  public  character,  but 
was  purely  in  aid  of  private  or  personal  objects,  the  law  author- 
izing it  was  beyond  the  legislative  power,  and  was  an  unauthor- 
ized invasion  of  private  right.  Olcott  v.  Supervisors,  16  Wall. 
689;  People  v.  Salem,  20  Mich.  452;  Jenkins  v.  Andover,  103 
Mass.  94 ;  Dillon  on  Municipal  Corporations,  §  587 ;  2  Redfield  's 
Laws  of  Railways,  398,  rule  2. 

It  must  be  conceded  that  there  are  such  rights  in  every  free 


LOAN  ASSOCIATION  v.  TOI'KKA  209 

government  beyond  the  control  of  the  State.  A  government 
which  recognized  no  such  rights,  which  held  the  lives,  the  liberty, 
and  the  property  of  its  citizens  subject  at  all  times  to  the  abso- 
lute disposition  and  unlimited  control  of  even  the  most  demo- 
cratic depository  of  power,  is  after  all  but  a  despotism.  It  is 
true  it  is  a  despotism  of  the  many,  of  the  majority,  if  you  choose 
to  call  it  so,  but  it  is  none  the  less  a  despotism.  It  may  well  be 
doubted  if  a  man  is  to  hold  all  that  he  is  accustomed  to  call  his 
own,  all  in  which  he  has  placed  his  happiness,  and  the  security 
of  which  is  essential  to  that  happiness,  under  the  unlimited  do- 
minion of  others,  whether  it  is  not  wiser  that  this  power  should 
be  exercised  by  one  man  than  by  many.  The  theory  of  our  gov- 
ernments, State  and  National,  is  opposed  to  the  deposit  of  un- 
limited power  anywhere.  The  executive,  the  legislative,  and 
the  judicial  branches  of  these  governments  are  all  of  limited  and 
defined  powers. 

There  are  limitations  on  such  power  which  grow  out  of  the 
essential  nature  of  all  free  governments.  Implied  reservations 
of  individual  rights,  without  which  the  social  compact  could  not 
exist,  and  which  are  respected  by  all  governments  entitled  to  the 
name.  No  court,  for  instance,  would  hesitate  to  declare  void  a 
statute  which  enacted  that  A  and  B,  who  were  husband  and  wife 
to  each  other,  should  be  so  no  longer,  but  that  A  should  there- 
after be  the  husband  of  C,  and  B  the  wife  of  D.  Or  which  should 
enact  that  the  homestead  now  owned  by  A  should  no  longer  be 
his,  but  should  henceforth  be  the  property  of  B.  Whiting  v. 
Fond  du  Lac,  25  Wis.  188 ;  Cooley  on  Constitutional  Limitations, 
129,  175,  487;  Dillon  on  Municipal  Corporations,  §  587. 

Of  all  the  powers  conferred  upon  government  that  of  taxa- 
tion is  most  liable  to  abuse.  Given  a  purpose  or  object  for  which 
taxation  may  be  lawfully  used,  and  the  extent  of  its  exercise  is 
in  its  very  nature  unlimited.  It  is  true  that  express  limitation 
on  the  amount  of  tax  to  be  levied  or  the  things  to  be  taxed  may 
be  imposed  by  constitution  or  statute,  but  in  most  instances  for 
Svhich  taxes  are  levied,  as  the  support  of  government,  the  prose- 
cution of  war,  the  National  defense,  any  limitation  is  unsafe. 
The  entire  resources  of  the  people  should  in  some  instance*  be 
at  the  disposal  of  the  government. 

The  power  to  tax  is  therefore,  the  strongest,  the  most  pervad- 
ing of  all  the  powers  of  government,  reaching  directly  or  indi- 
rectly to  all  classes  of  the  people.  It  was  said  by  Chief  Justice 
Marshall,  in  the  case  of  McCulloch  v.  The  State  of  Maryland, 

X.  C.  U— 14 


210  CASES  ON  CONSTITUTIONAL  LAW. 

4  "Wheat.  431,  that  the  power  to  tax  is  the  power  to  destroy.1 
A  striking  instance  of  the  truth  of  the  proposition  is  seen  in  the 
fact  that  the  existing  tax  of  ten  per  cent,  imposed  by  the  United 
States  on  the  circulation  of  all  other  banks  than  the  National 
banks,  drove  out  of  existence  every  State  bank  of  circulation 
within  a  year  or  two  after  its  passage.  This  power  can  as  readily 
be  employed  against  one  class  of  individuals  and  in  favor  of 
another,  so  as  to  ruin  the  one  class  and  give  unlimited  wealth 
and  prosperity  to  the  other,  if  there  is  no  implied  limitation  of 
the  uses  for  which  the  power  may  be  exercised. 

To  lay  with  one  hand  the  power  of  the  government  on  the 
property  of  the  citizen,  and  with  the  other  to  bestow  it  upon 
favored  individuals  to  aid  private  enterprises  and  build  up  pri- 
vate fortunes,  is  none  the  less  a  robbery  because  it  is  done  under 
the  forms  of  law  and  is  called  taxation.  This  is  not  legislation. 
It  is  a  decree  under  legislative  forms.  . 

We  have  established,  we  think,  beyond  cavil  that  there  can 
be  no  lawful  tax  which  is  not  laid  for  a  public  purpose.  It  may 
not  be  easy  to  draw  the  line  in  all  cases  so  as  to  decide  what  is  a 
public  purpose  in  this  sense  and  what  is  not. 

It  is  undoubtedly  the  duty  of  the  legislature  which  imposes 
or  authorizes  municipalities  to  impose  a  tax  to  see  that  it  is  not 
to  be  used  for  purposes  of  private  interest  instead  of  a  public 
use,  and  the  courts  can  only  be  justified  in  interposing  when  a 
violation  of  this  principle  is  clear  and  the  reason  for  interfer- 
ence cogent.  And  in  deciding  whether,  in  the  given  case,  the 
object  for  which  the  taxes  are  assessed  falls  upon  one  side  or  the 
other  of  this  line,  they  must  be  governed  mainly  by  the  course 
and  usage  of  the  government,  the  objects  for  which  taxes  have 
been  customarily  and  by  long  course  of  legislation  levied,  what 
objects  or  purposes  have  been  considered  necessary  to  the  sup- 
port and  for  the  proper  use  of  the  government,  whether  State 
or  municipal.  Whatever  lawfully  pertains  to  this,  and  is  sanc- 
tioned by  time  and  the  acquiescence  of  the  people,  may  well  be 
held  to  belong  to  the  public  use,  and  proper  for  the  maintenance 
of  good  government,  though  this  may  not  be  the  only  criterion 
of  rightful  taxation. 

But  in  the  ease  before  us,  in  which  the  towns  are  authorized 
to  contribute  aid  by  way  of  taxation  to  any  class  of  manufac- 
turers, there  is  no  difficulty  in  holding  that  this  is  not  such  a 

i  The  learned  judge  does  not  quote  Marshall  correctly.     What  the  Chief 
Justice  said  was, ' '  The  power  to  tax  involves  the  power  to  destroy. ' ' — Ed. 


LOAN  ASSOCIATION  v.  TOPEKA.  211 

public  purpose  as  we  have  been  considering.  If  it  be  said  that 
a  benefit  results  to  the  local  public  of  a  town  by  establishing 
manufactures,  the  same  may  be  said  of  any  other  business  or 
pursuit  which  employs  capital  or  labor.  The  merchant,  the  me- 
chanic, the  innkeeper,  the  banker,  the  builder,  the  steamboat 
owner  are  equally  promoters  of  the  public  good,  and  equally 
deserving  the  aid  of  the  citizens  by  forced  contributions.  No 
line  can  be  drawn  in  favor  of  the  manufacturer  which  would  not 
open  the  coffers  of  the  public  treasury  to  the  importunities  of 
two-thirds  of  the  business  men  of  the  city  or  town.  .  .  . 

Judgment  affirmed. 

MR.  JUSTICE  CLIFFORD,  dissenting.    .    .    . 

NOTE.— Accord :  Parkersburg  v.  Brown  (1882),  106  U.  8.  487;  Cole  T. 
La  Orange  (1884),  113  U.  8.  1,  and  Missouri  Pacific  By.  T.  Nebraska  (1896), 
164  U.  8.  403.  Examples  of  a  public  purpose  are  found  in  Fallbrook 
Irrigation  District  v.  Bradley  (1896),  164  U.  8.  112  (establishment  of  an 
irrigation  district);  Moore  v.  San  ford  (1890),  151  Mass.  285  (improvement 
of  Boston  harbor  and  construction  of  public  wharves) ;  Olcott  v.  Fond  du 
Lac  County  (1872),  16  Wallace,  678  (construction  of  a  railway)  but  contra, 
People  v.  Salem  (1870),  20  Mich.  452;  Prince  v.  Crocker  (1896),  166  Mass. 
347  (construction  of  a  subway  for  passenger  traffic) ;  North  Dakota  r. 
Nelson  County  (1890),  1  No.  Dak.  88  (loans  to  fanners  for  purchase  of 
seed-grain  in  counties  where  there  had  been  successive  failures  of  crops), 
but  contra,  State  v.  Osawkee  Township  (1875),  14  Kansas,  418;  Burlington 
Township  v.  Beasley  (1876),  94  U.  S.  310  (bonds  in  aid  of  a  grist  mill 
operated  by  water-power),  but  contra,  Osborne  v.  Adams  County  (1883),  106 
U.  8.  181  (where  the  grist  mill  was  operated  by  steam);  Van  Sicklen  v. 
Burlington  (1854),  27  Vt.  70  (maintenance  of  fire  companies) ;  Daggett  T. 
Colgan  (1891),  92  Cal.  53,  annotated  in  14  L.  R.  A.  475  (appropriation  for 
a  State  exhibit  at  a  world's  fair).  Levies  were  held  not  to  be  for  a  public 
purpose  in  State  ex  rel  v.  Snitzler  (1898),  143  Mo.  287  (tax  to  be  expended 
for  support  of  needy  students  at  the  State  university) ;  Dodge  v.  Mission 
Township  (1901),  46  C.  C.  A.  661  (support  of  a  public  sorghum  mill) ; 
MacKenzie  T.  Wooley  (1888),  39  La.  Ann.  944  (aid  in  building  a  public 
cotton  compress);  Lowell  et  al  T.  Boston  (1873),  111  Mass.  454  (loans  to 
land  owners  whose  buildings  had  been  destroyed  in  the  Boston  fire) ;  Michi 
gan  Sugar  Co.  v.  Auditor  General  (1900),  124  Mich.  674  (payment  of  a 
sugar  bounty);  Deal  v.  Mississippi  County  (1891),  107  Mo.  464  (ni-l  in 
planting  trees  on  private  land);  Attorney-General  T.  Eau  Claire  (1875), 
37  Wis.  400  (construction  of  a  dam  for  purpose  of  telling  water  power  to 
manufacturers). 

See  Cooley,  A  Treatite  on  the  Law  of  Taxation,  ch.  iv;  Gray,  Ltmitationt 
of  the  Taxing  Foyer,  ch.  iv;  Judson,  A  Treatise  on  the  Power  of  Taxation, 
ch.  xii. 


212  CASES  ON  CONSTITUTIONAL  LAW. 

SECTION  2.     THE  TAXATION  OF  AGENCIES  OF  GOVERNMENT. 

McCULLOCH  v.  THE  STATE  OF  MARYLAND  ET  AL. 

SUPREME  COURT  OF  THE  UNITED  STATES.    1819. 
4  Wheaton,  316;  4  Lawyers'  Ed.  579. 

[The  statement  of  facts  and  the  first  part  of  the  opinion  are 
given  ante,  page  12.] 

MARSHALL,  C.  J.,  delivered  the  opinion  of  the  court.     .     .    . 

It  being  the  opinion  of  the  court,  that  the  act  incorporating  the 
bank  is  constitutional;  and  that  the  power  of  establishing  a 
branch  in  the  State  of  Maryland  might  be  properly  exercised  by 
the  bank  itself,  we  proceed  to  inquire : — 

2.  Whether  the  State  of  Maryland  may,  without  violating  the 
constitution,  tax  that  branch? 

That  the  power  of  taxation  is  one  of  vital  importance ;  that  it 
is  retained  by  the  States ;  that  it  is  not  abridged  by  the  gpant  of 
a  similar  power  to  the  government  of  the  Union ;  that  it  is  to  be 
concurrently  exercised  by  the  two  governments :  are  truths  which 
have  never  been  denied.  But,  such  is  the  paramount  character 
of  the  constitution,  that  its  capacity  to  withdraw  any  subject 
from  the  action  of  even  this  power,  is  admitted.  The  States  are 
expressly  forbidden  to  lay  any  duties  on  imports  or  exports, 
except  what  may  be  absolutely  necessary  for  executing  their  in- 
spection laws.  If  the  obligation  of  this  prohibition  must  be  con- 
ceded— if  it  may  restrain  a  State  from  the  exercise  of  its  taxing 
power  on  imports  and  exports;  the  same  paramount  character 
would  seem  to  restrain,  as  it  certainly  may  restrain,  a  State 
from  such  other  exercise  of  this  power,  as  is  in  its  nature  in- 
compatible with,  and  repugnant  to,  the  constitutional  laws  of 
the  Union.  A  law,  absolutely  repugnant  to  another,  as  entirely 
repeals  that  other  as  if  express  terms  of  repeal  were  used. 

On  this  ground,  the  counsel  for  the  bank  place  its  claim  to  be 
exempted  from  the  power  of  a  State  to  tax  its  operations.  There 
is  no  express  provision  for  the  case,  but  the  claim  has  been  sus- 
tained on  a  principle  which  so  entirely  pervades  the  constitution, 
is  so  intermixed  with  the  materials  which  compose  it,  so  inter- 
woven with  its  web,  so  blended  with  its  texture,  as  to  be  incapa- 
ble of  being  separated  from  it,  without  rending  it  into  shreds. 

This  great  principle  is,  that  the  constitution  and  the  laws 
made  in  pursuance  thereof  are  supreme;  that  they  control  the 
constitution  and  laws  of  the  respective  States,  and  cannot  be 


McCULLOCH  v.  STATE  OF  MARYLAND.          213 

controlled  by  them.  From  this,  which  may  be  almost  termed  an 
axiom,  other  propositions  are  deduced  as  corollaries,  on  the  truth 
or  error  of  which,  and  on  their  application  to  this  case,  the  cause 
has  been  supposed  to  depend.  These  are,  X.  That  a  power  to  cre- 
ate implies- a  power  to  preserve.  (2.  That  a  power  to  destroy,  if 
wielded  by  a  different  hand,  is  hostile  to,  and  incompatible  with, 
these  powers  to  creat  and  preservef)  3.  That  where  this  repug- 
nancy exists,  the  authority  which  is  supreme  must  control,  not 
yield,  to  that  over  which  it  is  supreme."! 

These  propositions,  as  abstract  truths,  would,  perhaps,  never 
be  controverted.  Their  application  to  this  case,  however,  has 
been  denied;  and,  both  in  maintaining  the  affirmative  and  the 
negative,  a  splendor  of  eloquence,  and  strength  of  argument, 
seldom,  if  ever,  surpassed,  have  been  displayed. 

The  power  of  congress  to  create,  and  of  course  to  continue, 
the  bank,  was  the  subject  of  the  preceding  part  of  this  opinion ; 
and  is  no  longer  to  be  considered  as  questionable. 

That  the  power  of  taxing  it  by  the  States  may  be  exercised  so 
as  to  destroy  it,  is  too  obvious  to  be  denied.  But  taxation  is  said 
to  be  an  absolute  power,  which  acknowledges  no  other  limits 
than  those  expressly  prescribed  in  the  constitution,  and  like  sov- 
ereign power  of  every  other  description,  is  trusted  to  the  dis- 
cretion of  those  who  use  it  But  the  very  terms  of  this  argu- 
ment admit  that  the  sovereignty  of  the  State,  in  the  article  of 
taxation  itself,  is  subordinate  to,  and  may  be  controlled  by,  the 
constitution  of  the  United  States.  How  far  it  has  been  controlled 
by  that  instrument  must  be  a  question  of  construction.  In  mak- 
ing this  construction,  no  principle  not  declared,  can  be  admissi- 
ble, which  would  defeat  the  legitimate  operations  of  a  supreme 
government.  It  is  of  the  very  essence  of  supremacy  to  remove  all 
obstacles  to  its  action  within  its  own  sphere,  and  so  to  modify 
every  power  vested  in  subordinate  governments,  as  to  exempt 
its  own  operations  from  their  own  influence.  This  effect  need 
not  be  stated  in  terms.  It  is  so  involved  in  the  declaration  of 
supremacy,  so  necessarily  implied  in  it,  that  the  expression  of 
it  could  not  make  it  more  certain.  We  must,  therefore,  keep  it  in 
vi.-w  while  construing  the  constitution. 

The  argument  on  the  part  of  the  State  of  Maryland,  is,  not 

that  the  States  may  directly  resist  a  law  of  congress,  but  that 

may  exercise  their  acknowledged  power  upon  it,  and  that 

th»>  constitution  leaves  them  this  right  in  the  confidence  that 

they  will  not  abuse  it. 

Before  we  proceed  to  examine  this  argument,  and  to  subject 


214  CASES  ON  CONSTITUTIONAL  LAW. 

it  to  the  test  of  the  constitution,  we  must  be  permitted  to  bestow 
a  few  considerations  on  the  nature  and  extent  of  this  original 
right  of  taxation,  which  is  acknowledged  to  remain  with  the 
States.  It  is  admitted  that  the  power  of  taxing  the  people  and 
their  property  is  essential  to  the  very  existence  of  government, 
and  may  be  legitimately  exercised  on  the  objects  to  which  it  is 
applicable,  to  the  utmost  extent  to  which  the  government  may 
choose  to  carry  it.  The  only  security  against  the  abuse  of  this 
power,  is  found  in  the  structure  of  the  government  itself.  In 
imposing  a  tax  the  legislature  acts  upon  its  constituents.  This 
is  in  general  a  sufficient  security  against  erroneous  and  oppres- 
sive taxation. 

The  people  of  a  State,  therefore,  give  to  their  government  a 
right  of  taxing  themselves  and  their  property,  and  as  the  ex- 
igencies of  government  cannot  be  limited,  they  prescribe  no  lim- 
its to  the  exercise  of  this  right,  resting  confidently  on  the  inter- 
est of  the  legislator,  and  on  the  influence  of  the  constituents 
over  their  representatives,  to  guard  them  against  its  abuse.  But 
the  means  employed  by  the  government  of  the  Union  have  no 
such  security,  nor  is  the  right  of  a  State  to  tax  them  sustained 
by  the  same  theory.  Those  means  are  not  given  by  the  people 
of  a  particular  State,  not  given  by  the  constituents  of  the  legis- 
lature, which  claim  the  right  to  tax  them,  but  by  the  people  of 
all  the  States.  They  are  given  by  all,  for  the  benefit  of  all; 
and,  upon  theory,  should  be  subjected  to  that  government  only 
which  belongs  to  all. 

It  may  be  objected  to  this  definition,  that  the  power  of  tax- 
ation is  not  confined  to  the  people  and  property  of  a  State.  It 
may  be  exercised  upon  every  object  brought  within  its  jurisdic- 
tion. 

This  is  true.  But  to  what  source  do  we  trace  this  right?  It 
is  obvious,  that  it  is  an  incident  of  sovereignty,  and  is  co-exten- 
sive with  that  to  which  it  is  an  incident.  All  subjects  over  which 
the  sovereign  power  of  a  State  extends,  are  objects  of  taxation ; 
but  those  over  which  it  does  not  extend,  are,  upon  the  soundest 
principles,  exempt  from  taxation.  This  proposition  may  almost 
be  pronounced  self-evident. 

The  sovereignty  of  a  State  extends  to  everything  which  exists 
by  its  own  authority,  or  is  introduced  by  its  permission ;  but  does 
it  extend  to  those  means  which  are  employed  by  congress  to  carry 
into  execution  powers  conferred  on  that  body  by  the  people  of 
the  United  States?  We  think  it  demonstrable  that  it  does  not. 
Those  powers  are  not  given  by  the  people  of  a  single  State. 


McCULLOCH  v.  STATE  OF  MARYLAND  215 

They  are  given  by  the  people  of  the  United  States,  to  a  govern- 
ment whose  laws,  made  in  pursuance  of  the  constitution,  are  de- 
clared to  be  supreme.  Consequently,  the  people  of  a  single  State 
cannot  confer  a  sovereignty  which  will  extend  over  them. 

If  we  measure  the  power  of  taxation  residing  in  a  State,  by 
the  extent  of  sovereignty  which  the  people  of  a  single  State  pos- 
sess, and  can  confer  on  its  government,  we  have  an  intelligible 
standard,  applicable  to  every  case  to  which  the  power  may  be 
applied.  We  have  a  principle  which  leaves  the  power  of  taxing 
the  people  and  property  of  a  State  unimpaired ;  which  leaves  to 
a  State  the  command  of  all  its  resources,  and  which  places  be- 
yond its  reach,  all  those  powers  which  are  conferred  by  the  peo- 
ple of  the  United  States  on  the  government  of  the  Union,  and  all 
those  means  which  are  given  for  the  purpose  of  carrying  those 
powers  into  execution.  We  have  a  principle  which  is  safe  for 
the  States,  and  safe  for  the  Union.  We  are  relieved,  as  we  ought 
to  be,  from  clashing  sovereignty ;  from  interfering  powers ;  from 
a  repugnancy  between  a  right  in  one  government  to  pull  down 
what  there  is  an  acknowledged  right  in  another  to  build  up; 
from  the  incompatibility  of  a  right  in  one  government  to  destroy 
what  there  is  a  right  in  another  to  preserve.  We  are  not  driven 
to  the  perplexing  inquiry,  so  unfit  for  the  judicial  department, 
what  degree  of  taxation  is  the  legitimate  use,  and  what  degree 
may  amount  to  the  abuse  of  the  power.  The  attempt  to  use  it 
on  the  means  employed  by  the  government  of  the  Union,  in  pur- 
suance of  the  constitution,  is  in  itself  an  abuse,  beeanie  it  is  the 
usurpation  of  a  power,  which  the  people  of  a  single  State  can- 
not give. 

We  find,  then,  on  just  theory,  a  total  failure  of  this  original 
right  to  tax  the  means  employed  by  the  government  of  the  Union, 
for  the  execution  of  its  powers.  The  right  never  existed,  and  the 
question  whether  it  has  been  surrendered,  cannot  arise. 

But,  waiving  this  theory  for  the  present,  let  us  resume  the 
inquiry,  whether  this  power  can  be  exercised  by  the  respective 
States,  consistently  with  a  fair  construction  of  the  constitution  T 

That  the  power  to  tax  involves  the  power  to  destroy ;  that  the 
power  to  destroy  may  defeat  and  render  useless  the  power  to  cre- 
ate ;  that  there  is  a  plain  repugnance,  in  conferring  on  one  gov- 
ernment a  power  to  control  the  constitutional  measures  of  an- 
other, which  other,  with  respect  to  those  very  measures,  is  de- 
clared to  be  supreme  over  that  which  exerts  the  control,  are 
propositions  not  to  be  denied.  But  all  inconsistencies  are  to  be 
reconciled  by  the  magic  of  the  word  confidence.  Taxation,  it  is 


216  CASES  ON  CONSTITUTIONAL  LAW. 

said,  does  not  necessarily  and  unavoidably  destroy.  To  carry 
it  to  the  excess  of  destruction  would  be  an  abuse,  to  presume 
which,  would  banish  that  confidence  which  is  essential  to  all 
government. 

But  is  this  a  case  of  confidence  ?  Would  the  people  of  any  one 
State  trust  those  of  another  with  a  power  to  control  the  most 
insignificant  operations  of  their  State  government?  We  know 
they  would  not.  Why,  then,  should  we  suppose  that  the  people 
of  any  one  State  should  be  willing  to  trust  those  of  another  with 
a  power  to  control  the  operations  of  a  government  to  which  they 
have  confided  their  most  important  and  most  valuable  interests  ? 
In  the  legislature  of  the  Union  alone,  are  all  represented.  The 
legislature  of  the  Union  alone,  therefore,  can  be  trusted  by  the 
people  with  the  power  of  controlling  measures  which  concern  all, 
in  the  confidence  that  it  will  not  be  abused.  This,  then,  is  not  a 
case  of  confidence,  and  we  must  consider  it  as  it  really  is. 

If  we  apply  the  principle  for  which  the  State  of  Maryland 
contends,  to  the  constitution  generally,  we  shall  find  it  capable  of 
changing  totally  the  character  of  that  instrument.  We  shall  find 
it  capable  of  arresting  all  the  measures  of  the  government,  and 
of  prostrating  it  at  the  foot  of  the  States.  The  American  people 
have  declared  their  constitution,  and  the  laws  made  in  pursu- 
ance thereof,  to  be  supreme;  but  this  principle  would  transfer 
the  supremacy,  in  fact,  to  the  State. 

If  the  States  may  tax  one  instrument,  employed  by  the  gov- 
ernment in  the  execution  of  its  powers,  they  may  tax  any  and 
every  other  instrument.  They  may  tax  the  mail ;  they  may  tax 
the  mint;  they  may  tax  patent  rights;  they  may  tax  the  papers 
of  the  custom-house;  they  may  tax  judicial  process;  they  may 
tax  all  the  means  employed  by  the  government,  to  an  excess 
which  would  defeat  all  the  ends  of  government.  This  was  not 
intended  by  the  American  people.  They  did  not  design  to  make 
their  government  dependent  on  the  States. 

Gentlemen  say,  they  do  not  claim  the  right  to  extend  State 
taxation  to  these  objects.  They  limit  their  pretensions  to  prop- 
erty. But  on  what  principle  is  this  distinction  made  ?  Those  who 
make  it  have  furnished  no  reason  for  it,  and  the  principle  for 
which  they  contend  denies  it.  They  contend  that  the  power  of 
taxation  has  no  other  limit  than  is  found  in  the  10th  section  of 
the  1st  article  of  the  constitution;  that,  with  respect  to  every- 
thing else,  the  power  of  the  States  is  supreme,  and  admits  of  no 
control.  If  this  be  true,  the  distinction  between  property  and 
other  subjects  to  which  the  power  of  taxation  is  applicable,  is 


McCULLOCH  v.  STATE  OF  MARYLAND  217 

merely  arbitrary,  and  can  never  be  sustained.  This  is  not  all. 
If  the  controlling  power  of  the  States  be  established;  if  their 
supremacy  as  to  taxation  be  acknowledged;  what  is  to  restrain 
their  exercising  this  control  in  any  shape  they  may  please  to  give 
itt  Their  sovereignty  is  not  confined  to  taxation.  That  is  not 
the  only  mode  in  which  it  might  be  displayed.  The  question  is, 
in  truth,  a  question  of  supremacy;  and  if  the  right  of  the  States 
to  tax  the  means  employed  by  the  general  government  be  con- 
ceded, the  declaration  that  the  constitution,  and  the  laws  made  in 
pursuance  thereof,  shall  be  the  supreme  law  of  the  land,  is  empty 
and  unmeaning  declamation. 

In  the  course  of  the  argument,  the  Federalist  has  been  quoted ; 
and  the  opinions  expressed  by  the  authors  of  that  work  have 
been  justly  supposed  to  be  entitled  to  great  respect  in  expounding 
the  constitution.  No  tribute  can  be  paid  to  them  which  exceeds 
their  merit;  but  in  applying  their  opinions  to  the  cases  which 
may  arise  in  the  progress  of  our  government,  a  right  to  judge  of 
their  correctness  must  be  retained ;  and,  to  understand  the  argu- 
ment, we  must  examine  the  proposition  it  maintains,  and  the 
objections  against  which  it  is  directed.  The  subject  of  those 
numbers,  from  which  passages  have  been  cited,  is  the  unlimited 
power  of  taxation  which  is  vested  in  the  general  government. 
The  objection  to  this  unlimited  power,  which  the  argument  seeks 
to  remove,  is  stated  with  fulness  and  clearness.  It  is  "that  an 
indefinite  power  of  taxation  in  the  latter  (the  government  of  the 
Union)  might,  and  probably  would,  in  time,  deprive  the  former 
(the  government  of  the  States)  of  the  means  of  providing  for 
their  own  necessities;  and  would  subject  them  entirely  to  the 
mercy  of  the  national  legislature.  As  the  laws  of  the  Union  are 
to  become  the  supreme  law  of  the  land ;  as  it  is  to  have  power  to 
pass  all  laws  that  may  be  necessary  for  carrying  into  execution 
the  authorities  with  which  it  is  proposed  to  vest  it ;  the  national 
government  might  at  any  time  abolish  the  taxes  imposed  for 
State  objects,  upon  the  pretense  of  an  interference  with  its  own. 
It  might  allege  a  necessity  for  doing  this,  in  order  to  give  effi- 
cacy to  the  national  revenues;  and  thus  all  the  resources  of  tax- 
ation might,  by  degrees,  become  the  subjects  of  federal  monop- 
oly, to  the  entire  exclusion  and  destruction  of  the  state  govern- 
ments." 

The  objections  to  the  constitution  which  are  noticed  in  these 
numoers,  were  to  the  undefined  power  of  the  government  to  tax, 
not  to  the  incidental  privilege  of  exempting  its  own  measures 
from  State  taxation.  The  consequences  apprehended  from  this 


218  CASES  ON  CONSTITUTIONAL  LAW. 

undefined  power  were,  that  it  would  absorb  all  the  objects  of  tax- 
ation, "to  the  exclusion  and  destruction  of  the  state  govern- 
ments. ' '  The  arguments  of  the  Federalist  are  intended  to  prove 
the  fallacy  of  these  apprehensions ;  not  to  prove  that  the  govern- 
ment was  incapable  of  executing  any  of  its  powers,  without  ex- 
posing the  means  it  employed  to  the  embarrassments  of  State  tax- 
ation. Arguments  urged  against  these  objections,  and  these  ap- 
prehensions, are  to  be  understood  as  relating  to  the  points  they 
mean  to  prove.  Had  the  authors  of  those  excellent  essays  been 
asked,  whether  they  contended  for  that  construction  of  the  con- 
stitution, which  would  place  within  the  reach  of  the  States  those 
measures  which  the  government  might  adopt  for  the  execution  of 
its  powers;  no  man,  who  has  read  their  instructive  pages,  will 
hesitate  to  admit,  that  their  answer  must  have  been  in  the  nega- 
tive. 

It  has  also  been  insisted,  that,  as  the  power  of  taxation  in  the 
general  and  state  governments  is  acknowledged  to  be  concurrent, 
every  argument  which  would  sustain  the  right  of  the  general 
government  to  tax  "banks  chartered  by  the  States,  will  equally 
sustain  the  right  of  the  States  to  tax  banks  chartered  by  the 
general  government. 

But  the  two  cases  are  not  on  the  same  reason.  The  people  of 
all  the  States  have  created  the  general  government,  and  have  con- 
ferred upon  it  the  general  power  of  taxation.  The  people  of  all 
the  States,  and  the  States  themselves,  are  represented  in  congress, 
and,  by  their  representatives,  exercise  this  power.  When  they  tax 
the  chartered  institutions  of  the  States,  they  tax  their  constitu- 
ents ;  and  these  taxes  must  be  uniform.  tBut  when  a  State  taxes 
the  operations  of  the  government  of  the  United  States,  it  acts 
upon  institutions  created,  not  by  their  own  constituents,  but  by 
people  over  whom  they  claim  no  control.)  It  acts  upon  the  meas- 
ures of  a  government  created  by  others  as  well  as  themselves,  for 
the  benefit  of  others  in  common  with  themselves.  The  difference 
is  that  which  always  exists,  and  always  must  exist,  between  the 
action  of  the  whole  on  a  part,  and  the  action  of  a  part  on  the 
whole ;  between  the  laws  of  a  government  declared  to  be  supreme, 
and  those  of  a  government  which,  when  in  opposition  to  those 
laws,  is  not  supreme. 

But  if  the  full  application  of  this  argument  could  be  admitted, 
it  might  bring  into  question  the  right  of  congress  to  tax  the 
state  banks,  and  could  not  prove  the  right  of  the  States  to  tax 
the  Bank  of  the  United  States. 

The  court  has  bestowed  on  this  subject  its  most  deliberate  con- 


McCULLOCH  v.  STATE  OF  MARYLAND  219 

sideration.  (The  result  is  a  conviction  that  the  State*  have  no 
power,  by  taxation  or  otherwise,  to  retard,  impede,  burden,  or  in 
any  manner  control,  the  operations  of  the  constitutional  laws 
enacted  by  congress  to  carry  into  execution  the  powers  vested  in 
the  general  government.}  This  is,  we  think,  the  unavoidable  con- 
sequence of  that  supremacy  which  the  constitution  has  declared. 

We  are  unanimously  of  opinion,  that  the  law  passed  by  the 
legislature  of  Maryland,  imposing  a  tax  on  the  Bank  of  the 
United  States,  is  unconstitutional  and  void. 

This  opinion  does  not  deprive  the  States  of  any  resources  which 
they  originally  possessed.  It  does  not  extend  to  a  tax  paid  by 
the  real  property  of  the  bank,  in  common  with  the  other  real 
property  within  the  State,  nor  to  a  tax  imposed  on  the  interest 
which  the  citizens  of  Maryland  may  hold  in  this  institution,  in 
common  with  other  property  of  the  same  description  throughout 
the  State.  But  this  is  a  tax  on  the  operations  of  the  bank,  and 
is,  consequently,  a  tax  on  the  operation  of  an  instrument  em- 
ployed by  the  government  of  the  Union  to  carry  its  powers  into 
execution.  Such  a  tax  must  be  unconstitutional. 

JUDGMENT.  This  cause  came  on  to  be  heard  on  the  transcript 
of  the  record  of  the  court  of  appeals  of  the  State  of  Maryland, 
and  was  argued  by  counsel.  On  consideration  whereof,  it  is  the 
opinion  of  this  court  that  the  act  of  the  legislature  of  Maryland 
is  contrary  to  the  constitution  of  the  United  States,  and  void. 


NOTE. — The  power  of  the  States  to  tax  the  Bank  of  the  United  States  was 
re-examined  and  the  doctrine  of  the  principal  case  was  affirmed  in  Osborn 
v.  Bank  of  the  United  States  (1824),  0  Wheaton,  738.  The  exemption  of 
Federal  agencies  from  State  taxation  is  subject  to  limitations  some  of  which 
are  suggested  in  National  Bank  v.  Commonwealth  (1870),  9  Wallace,  353, 
361: 

It  certainly  cannot  be  maintained  that  banks  or  other  corpora- 
tions or  instrumentalities  of  the  government  are  to  be  wholly  with- 
drawn from  the  operation  of  State  legislation.  The  most  important 
agents  of  the  Federal  government  are  its  officers,  but  no  one  will 
contend  that  when  a  man  becomes  Ml  officer  of  the  government  be 
ceases  to  be  subject  to  the  laws  of  the  State.  The  principle  we 
are  discussing  has  its  limitation,  a  limitation  growing  out  of  the 
necessity  on  which  the  principle  itself  is  founded.  That  limitation 
is,  that  the  agencies  of  the  Federal  government  are  only  exempted 
from  State  legislation,  so  far  as  that  legislation  may  interfere  with, 
or  impair  their  efficiency  in  performing  the  functions  by  which  they 
are  designed  to  serve  that  government.  Any  other  rule  would  con- 
vert a  principle  founded  alone  in  the  necessity  of  securing  to  the 
government  of  the  United  States  the  means  of  exercising  its  legiti- 


220  CASES  ON  CONSTITUTIONAL  LAW. 

mate  powers,  into  an  unauthorized  and  unjustifiable  invasion  of  the 
rights  of  the  States.  The  salary  of  a  Federal  officer  may  not  be 
taxed;  he  may  be  exempted  from  any  personal  service  which  inter- 
feres with  the  discharge  of  his  official  duties,  because  those  exemp- 
tions are  essential  in  order  to  enable  him  to  perform  those  duties. 
But  he  is  subject  to  all  the  laws  of  the  State  which  affect  his  family 
or  social  relations,  or  his  property,  and  he  is  liable  to  punishment 
for  crime,  though  that  punishment  be  imprisonment  or  death.  So 
of  the  banks.  They  are  subject  to  the  laws  of  the  State,  and  are 
governed  in  their  daily  course  of  business  far  more  by  the  laws  of 
the  State  than  of  the  nation.  All  their  contracts  are  governed  and 
construed  by  State  laws.  Their  acquisition  and  transfer  of  property, 
their  right  to  collect  their  debts,  and  their  liability  to  be  sued  for 
debts,  are  all  based  on  State  law.  It  is  only  when  the  State  law 
incapacitates  the  banks  from  discharging  their  duties  to  the  govern- 
ment that  it  becomes  unconstitutional. 

See  also  Thompson  v.  Union  Pacific  Ey.  (1870),  9  Wallace,  579;  Union 
Pacific  Ey.  v.  Peniston  (1873),  18  Wallace,  5;  Owensboro  National  Bank  v. 
City  of  Owensboro  (1899),  173  U.  S.  664.  As  to  the  taxation  of  Federal 
securities  see  Weston  v.  Charleston  (1829),  2  Peters,  450;  Van  Allen  v. 
Assessors  (1866),  3  Wallace,  573;  Bank  of  Commerce  v.  New  York  City 
(1862),  2  Blach.  620;  The  Banks  v.  The  Mayor  (1868),  7  Wallace,  16; 
The  Bank  v.  The  Supervisors  (1868),  7  Wallace,  26;  Hibernia  Savings  and 
Loan  Society  v.  San  Francisco  (1906),  200  U.  S.  310;  Home  Savings  Bank 
v.  Des  Moines  (1907),  205  U.  S.  503. 


VEAZIE  BANK  v.  FENNO. 

SUPREME  COURT  OF  THE  UNITED  STATES.    1869. 
8  Wallace,  533 ;  19  Lawyers '  Ed.  482. 

On  certificate  of  division  for  the  Circuit  Court  of  Maine. 

The  CHIEF  JUSTICE  delivered  the  opinion  of  the  court.    .    .    * 

The  general  question  now  "before  us  is,  whether  or  not  the  tax 
of  ten  per  cent.,  imposed  on  State  banks  or  National  banks  pay- 
ing out  the  notes  of  individuals  or  State  banks  used  for  circula- 
tion, is  repugnant  to  the  Constitution  of  the  United  States. 

In  support  of  the  position  that  the  act  of  Congress,  so  far  as  it 
provides  for  the  levy  and  collection  of  this  tax,  is  repugnant  to 
the  Constitution,  two  propositions  have  been  argued  with  much 
force  and  earnestness. 

The  first  is  that  the  tax  in  question  is  a  direct  tax,  and  has  not 
been  apportioned  among  the  States  agreeably  to  the  Constitution. 

The  second  is  that  the  act  imposing  the  tax  impairs  a  franchise 
granted  by  the  State,  and  that  Congress  has  no  power  to  pass  any 
law  with  that  intent  or  effect. 

The  first  of  these  propositions  will  be  first  examined.     .     .     . 


VEAZIE  BANK  v.  FENNO.  221 

Much  diversity  of  opinion  has  always  prevailed  upon  the  ques- 
tion, what  are  direct  taxes?  Attempts  to  answer  it  by  reference 
to  the  definitions  of  political  economists  have  been  frequently 
made,  but  without  satisfactory  results.  The  enumeration  of  the 
different  kinds  of  taxes  which  Congress  was  authorized  to  impose 
was  probably  made  with  little  reference  to  their  speculations. 
.  .  .  We  are  obliged  therefore  to  resort  to  historical  >-\\- 
dence,  and  to  seek  the  meaning  of  the  words  in  the  use  and  in 
the  opinion  of  those  whose  relations  to  the  government,  and 
means  of  knowledge,  warranted  them  in  speaking  with  author- 
ity. And  considered  in  this  light,  the  meaning  and  application 
of  the  rule,  as  to  direct  taxes,  appears  to  us  quite  clear.  It  is, 
as  we  think,  distinctly  shown  in  every  act  of  Congress  on  the 
subject 

In  each  of  these  acts,  a  gross  sum  was  laid  upon  the  United 
States,  and  the  total  amount  was  apportioned  to  the  several 
States,  according  to  their  respective  number  of  inhabitants,  as 
ascertained  by  the  last  preceding  census.  Having  been  appor- 
tioned, provision  was  made  for  the  imposition  of  the  tax  upon 
the  subjects  specified  in  the  act,  fixing  its  total  sum.  ...  In 
each  instance,  the  total  sum  was  apportioned  among  the  States, 
by  the  constitutional  rule,  and  was  assessed  at  prescribed  rates, 
on  the  subjects  of  the  tax.  These  subjects,  in  1798,  1  Stat.  at 
Large,  586;  1813,  3  Ib.  26;  1815,  Id.  166;  1816,  Id.  255,  were 
lands,  improvements,  dwelling-houses,  and  slaves;  and  in  1861, 
lands,  improvements,  and  dwelling-houses  only.  Under  the  act 
of  1798,  slaves  were  assessed  at  fifty  cents  on  each ;  under  the 
other  acts,  according  to  valuation  by  assessors.  This  review  shows 
that  personal  property,  contracts,  occupations,  and  the  like,  have 
never  been  regarded  by  Congress  as  proper  subjects  of  direct  tax, 

[After  a  discussion  of  Hylton  v.  U.  S.  (1796),  3  Dallas,  171, 
in  which  the  validity  of  a  Federal  tax  on  carriages  was  involved, 
the  court  continues:] 

It  may  be  safely  assumed,  therefore,  as  the  unanimous  judg- 
ment of  the  court,  that  a  tax  on  carriages  is  not  a  direct  tax.  And 
it  may  further  be  taken  as  established  upon  the  testimony  of  Pat- 
erson,  that  the  words  direct  taxes,  as  used  in  the  Constitution, 
comprehended,  only  capitation  taxes,  and  taxes  on  land,  and  per- 
haps taxes  on  personal  property  by  general  valuation  and  nnmn 
ment  of  the  various  descriptions  possessed  within  the  several 
States. 


222  CASES  ON  CONSTITUTIONAL  LAW. 

It  follows  necessarily  that  the  power  to  tax  without  apportion- 
ment extends  to  all  other  objects.  Taxes  on  other  objects  are  in- 
cluded under  the  heads  of  taxes  not  direct,  duties,  imposts,  and 
excises,  and  must  be  laid  and  collected  by  the  rule  of  uniformity. 
The  tax  under  consideration  is  a  tax  on  bank  circulation,  and  may 
very  well  be  classed  under  the  head  of  duties.  Certainly  it  is 
not,  in  the  sense  of  the  Constitution,  a  direct  tax.  It  may  be  said 
to  come  within  the  same  category  of  taxation  as  the  tax  on 
incomes  of  insurance  companies,  which  this  court,  at  the  last 
term,  in  the  case  of  Pacific  Insurance  Company  v.  Soule,  7  Wal- 
lace, 434,  held  not  to  be  a  direct  tax. 

Is  it,  then,  a  tax  on  a  franchise  granted  by  a  State,  which  Con- 
gress, upon  any  principle  exempting  the  reserved  powers  of  the 
States  from  impairment  by  taxation,  must  be  held  to  have  no 
authority  to  lay  and  collect  ?  We  do  not  say  that  there  may  not 
be  such  a  tax.  It  may  be  admitted  that  the  reserved  rights  of 
the  States,  such  as  the  right  to  pass  laws,  to  give  effect  to  laws 
through  executive  action,  to  administer  justice  through  the 
courts,  and  to  employ  all  necessary  agencies  for  legitimate  pur- 
poses of  State  government,  are  not  proper  subjects  of  the  taxing 
power  of  Congress.  But  it  cannot  be  admitted  that  franchises 
granted  by  a  State  are  necessarily  exempt  from  taxation;  for 
franchises  are  property,  often  very  valuable  and  productive  prop- 
erty ;  and  when  not  conferred  for  the  purpose  of  giving  effect  to 
some  reserved  power  of  a  State,  seem  to  be  as  properly  objects  of 
taxation  as  any  other  property. 

But  in  the  case  before  us  the  object  of  taxation  is  not  the  fran- 
chise of  the  bank,  but  property  created,  or  contracts  made  and 
issued  under  the  franchise,  or  power  to  issue  bank  bills.  A  rail- 
road company,  in  the  exercise  of  its  corporate  franchises,  issues 
freight  receipts,  bills  of  lading,  and  passenger  tickets ;  and  it  can- 
not be  doubted  that  the  organization  of  railroads  is  quite  as  im- 
portant to  the  State  as  the  organization  of  banks.  But  it  will 
hardly  be  questioned  that  these  contracts  of  the  company  are  ob- 
jects of  taxation  within  the  powers  of  Congress,  and  not  exempted 
by  any  relation  to  the  State  which  granted  the  charter  of  the 
railroad.  And  it  seems  difficult  to  distinguish  the  taxation  of 
notes  issued  for  circulation  from  the  taxation  of  these  railroad 
contracts.  Both  descriptions  of  contracts  are  means  of  profit  to 
the  corporations  which  issue  them;  and  both,  as  we  think,  may 
properly  be  made  contributory  to  the  public  revenue. 

It  is  insisted,  however,  that  the  tax  in  the  case  before  us  is 
excessive,  and  so  execessive  as  to  indicate  a  purpose  on  the  part 


VEAZIE  BANK  v.  FEXNO.  223 

• 

of  Congress  to  destroy  the  franchise  of  the  bank,  and  is,  there- 
fore, beyond  the  constitutional  power  of  Congress. 

The  first  answer  to  this  is  that  the  judicial  cannot  prescribe 
to  the  legislative  department  of  the  government  limitations  upon 
the  exercise  of  its  acknowledged  powers.  The  power  to  tax  may 
be  exercised  oppressively  upon  persons,  but  the  responsibility 
of  the  legislature  is  not  to  the  courts,  but  to  the  people  by  whom 
its  members  are  elected.  So  if  a  particular  tax  bears  heavily  upon 
a  corporation,  or  a  class  of  corporations,  it  cannot,  for  that  rea- 
son only,  be  pronounced  contrary  to  the  Constitution. 

But  there  is  another  answer  which  vindicates  equally  the  wis- 
dom and  the  power  of  Congress. 

It  cannot  be  doubted  that  under  the  Constitution  the  power  to 
provide  a  circulation  of  coin  is  given  to  Congress.  And  it  is  set- 
tled by  the  uniform  practice  of  the  government  and  by  repeated 
decisions,  that  Congress  may  constitutionally  authorize  the  emis- 
sion of  bills  of  credit.  It  is  not  important  here,  to  decide  whether 
the  quality  of  legal  tender  in  payment  of  debts,  can  be  constitu- 
tionally imparted  to  these  bills ;  it  is  enough  to  say,  that  there  can 
be  no  question  of  the  power  of  the  government  to  emit  them ;  to 
make  them  receivable  in  payment  of  debts  to  itself;  to  fit  them  for 
use  by  those  who  see  fit  to  use  them  in  all  the  transactions  of  com- 
merce ;  to  provide  for  their  redemption ;  to  make  them  a  currency, 
uniform  in  value  and  description,  and  convenient  and  useful  for 
circulation.  These  powers,  until  recently,  were  only  partially  and 
occasionally  exercised.  Lately,  however,  they  have  been  called 
into  full  activity,  and  Congress  has  undertaken  to  supply  a  cur- 
rency for  the  entire  country. 

The  methods  adopted  for  the  supply  of  this  currency  were 
briefly  explained  in  the  first  part  of  this  opinion.  It  now  consists 
of  coin,  of  United  States  notes,  and  of  the  notes  of  the  national 
banks.  Both  descriptions  of  notes  may  be  properly  described  as 
bills  of  credit,  for  both  are  furnished  by  the  government;  both 
are  issued  on  the  credit  of  the  government ;  and  the  government 
is  responsible  for  the  redemption  of  both ;  primarily  as  to  the  first 
description,  and  immediately  upon  default  of  the  bank,  as  to  the 
second.  When  these  bills  shall  be  made  convertible  into  coin,  at 
the  will  of  the  holder,  this  currency  will,  perhaps,  satisfy  the 
wants  of  the  community,  in  respect  to  a  circulating  medium,  at 
perfectly  as  any  mixed  currency  that  can  be  devised. 

Having  thus,  in  the  exercise  of  undisputed  constitutional  pow- 
ers, undertaken  to  provide  a  currency  for  the  whole  country,  it 
cannot  be  questioned  that  Congress  may,  constitutionally,  secure 


224  CASES  ON  CONSTITUTIONAL  LAW. 

the  benefit  of  it  to  the  people  by  appropriate  legislation.  To  this 
end,  Congress  has  denied  the  quality  of  legal  tender  to  foreign 
coins,  and  has  provided  by  law  against  the  imposition  of  coun- 
terfeit and  base  coin  on  the  community.  To  the  same  end,  Con- 
gress may 'restrain,  by  suitable  enactments,  the  circulation  as 
money  of  any  notes  not  issued  under  its  own  authority.  Without 
this  power,  indeed,  its  attempts  to  secure  a  sound  and  uniform 
currency  for  the  country  must  be  futile. 

Viewed  in  this  light,  as  well  as  in  the  other  light  of  a  duty  on 
contracts  or  property,  we  cannot  doubt  the  constitutionality  of 
the  tax  under  consideration.  The  three  questions  certified  from 
the  Circuit  Court  of  the  District  of  Maine  must,  therefore,  be  an- 
swered Affirmatively, 

MR.  JUSTICE  NELSON,  with  whom  concurred  MB.  JUSTICE  DAVIS, 
dissenting.  .  .  . 




THE  COLLECTOR  v.  DAY. 

SUPREME  COURT  OF  THE  UNITED  STATES.    1870. 


11  Wallace,  113;  20  Lawyers'  Ed.  122. 


ERROR  to  the  Circuit  Court  for  the  District  of  Massachusetts. 

MR.  JUSTICE  NELSON  delivered  the  opinion  of  the  court. 

The  case  presents  the  question  whether  or  not  it  is  competent 
for  Congress,  under  the  Constitution  of  the  United  States,  to  im- 
pose a  tax  upon  the  salary  of  a  judicial  officer  of  a  State  ? 

In  Dobbins  v.  The  Commissioners  of  Erie  County,  16  Peters, 
435,  it  was  decided  that  it  was  not  competent  for  the  legislature 
of  a  State  to  levy  a  tax  upon  the  salary  or  emoluments  of  an 
officer  of  the  United  States.  The  decision  was  placed  mainly 
upon  the  ground  that  the  officer  was  a  means  or  instrumentality 
employed  for  carrying  into  effect  some  of  the  legitimate  powers 
of  the  government,  which  could  not  be  interfered  with  by  tax- 
ation or  otherwise  by  the  States,  and  that  the  salary  or  compen- 
sation for  the  service  of  the  officer  was  inseparably  connected  with 
the  office;  that  if  the  officer,  as  such,  was  exempt,  the  salary  as- 
signed for  his  support  or  maintenance  while  holding  the  office 
was  also,  for  like  reasons,  equally  exempt. 

The  cases  of  McCulloch  v.  Maryland,  4  Wheaton,  316,  and  Wes- 
ton  v.  Charleston,  2  Peters,  449,  were  referred  to  as  settling  the 


THE  COLLECTOR  v.  DAY.  122  , 

principle  that  governed  the  case,  namely,  "that  the  State  gov- 
ernments cannot  lay  a  tax  upon  the  constitutional  means  em- 
ployed by  the  government  of  the  Union  to  execute  its  constitu- 
tional powers. "... 

It  is  conceded  in  the  case  of  McCulloch  v.  Maryland,  that  the 
power  of  taxation  by  the  States  was  not  abridged  by  the  grant 
of  a  similar  power  to  the  government  of  the  Union ;  that  it  was 
retained  by  the  States,  and  that  the  power  is  to  be  concurrently 
exercised  by  the  two  governments ;  and  also  that  there  is  no  ex- 
press constitutional  prohibition  upon  the  States  against  taxing 
the  means  or  instrumentalities  of  the  general  government  But 
it  was  held,  and  we  agree  properly  held,  to  be  prohibited  by  nec- 
essary implication;  otherwise,  the  States  might  impose  taxation 
to  an  extent  that  would  impair,  if  not  wholly  defeat,  the  opera- 
tions of  the  Federal  authorities  when  acting  in  their  appropriate 
sphere. 

These  views,  we  think,  abundantly  establish  the  soundness  of 
the  decision  of  the  case  of  Dobbins  v.  The  Commissioners  of  Erie, 
which  determined  that  the  States  were  prohibited,  upon  a  proper 
construction  of  the  Constitution,  from  taxing  the  salary  or  emolu- 
ments of  an  officer  of  the  government  of  the  United  States.  And 
we  shall  now  proceed  to  show  that,  upon  the  same  construction  of 
that  instrument,  and  for  like  reasons,  that  government  is  pro- 
hibited from  taxing  the  salary  of  the  judicial  officer  of  a  State. 

It  is  a  familiar  rule  of  construction  of  the  Constitution  of  the 
Union,  that  the  sovereign  powers  vested  in  the  State  governments 
by  their  respective  constitutions  remained  unaltered  and  unim- 
paired, except  so  far  as  they  were  granted  to  the  government  of 
the  United  States.  That  the  intention  of  the  f  ramers  of  the  Con- 
stitution in  this  respect  might  not  be  misunderstood,  this  rule  of 
interpretation  is  expressly  declared  in  the  tenth  article  of  the 
amendments,  namely:  "The  powers  not  delegated  to  the  United 
States  are  reserved  to  the  States  respectively,  or,  to  the  people." 
The  government  of  the  United  States,  therefore,  can  claim  no 
powers  which  are  not  granted  to  it  by  the  Constitution,  and  the 
powers  actually  granted  must  be  such  as  are  expressly  given,  or 
given  by  necessary  implication. 

The  general  government,  and  the  States,  although  both  exist 
within  the  same  territorial  limits,  are  separate  and  distinct  sov- 
ereignties, acting  separately  and  independently  of  each  other, 
within  their  respective  spheres.  The  former  in  its  appropriate 
sphere  is  supreme ;  but  the  States  within  the  limits  of  their  pow- 
ers not  granted,  or,  in  the  language  of  the  tenth  amendment, 

E   C  U— 15 


226  CASES  ON  CONSTITUTIONAL  LAW. 

"reserved,"  are  as  independent  of  the  general  government  as 
that  government  within  its  sphere  is  independent  of  the  States. 

The  relations  existing  between  the  two  governments  are  well 
stated  by  the  present  Chief  Justice  in  the  case  of  Lane  County  v. 
Oregon,  7  Wallace,  76.  ' '  Both  the  States  and  the  United  States, ' ' 
he  observed,  "existed  before  the  Constitution.  The  people, 
through  that  instrument,  established  a  more  perfect  union,  by 
substituting  a  National  government,  acting  with  ample  powers 
directly  upon  the  citizens,  instead  of  the  Confederate  govern- 
ment, which  acted  with  powers  greatly  restricted,  only  upon  the 
States.  But,  in  many  of  the  articles  of  the  Constitution,  the  nec- 
essary existence  of  the  States,  and  within  their  proper  spheres, 
the  independent  authority  of  the  States,  are  distinctly  recognized. 
To  them  nearly  the  whole  charge  of  interior  regulation  is  com- 
mitted or  left;  to  them,  and  to  the  people,  all  powers,  not  ex- 
pressly delegated  to  the  National  government,  are  reserved." 
Upon  looking  into  the  Constitution,  it  will  be  found  that  but  few 
of  the  articles  in  that  instrument  could  be  carried  into  practical 
effect  without  the  existence  of  the  States. 

Two  of  the  great  departments  of  the  government,  the  executive 
and  legislative,  depend  upon  the  exercise  of  the  powers,  or  upon 
the  people  of  the  States.  The  Constitution  guarantees  to  the 
States  a  republican  form  of  government,  and  protects  each 
against  invasion  or  domestic  violence.  Such  being  the  separate 
and  independent  condition  of  the  States  in  our  complex  system, 
as  recognized  by  the  Constitution,  and  the  existence  of  which  is 
so  indispensable,  that,  without  them,  the  general  government  it- 
self would  disappear  from  the  family  of  nations,  it  would  seem 
to  follow,  as  a  reasonable,  if-  not  a  necessary  consequence,  that  the 
means  and  instrumentalities  employed  for  carrying  on  the  opera- 
tions of  their  governments,  for  preserving  their  existence,  and 
fulfilling  the  high  and  responsible  duties  assigned  to  them  in 
the  Constitution,  should  be  left  free  and  unimpaired,  should  not 
be  liable  to  be  crippled,  much  less  defeated,  by  the  taxing  power 
of  another  government,  which  power  acknowledges  no  limits  but 
the  will  of  the  legislative  body  imposing  the  tax.  And,  more 
especially,  those  means  and  instrumentalities  which  are  the  cre- 
ation of  their  sovereign  and  reserved  rights,  one  of  which  is  the 
establishment  of  the  judicial  department,  and  the  appointment 
of  officers  to  administer  their  laws.  Without  this  power,  and  the 
exercise  of  it,  we  risk  nothing  in  saying  that  no  one  of  the  States 
under  the  form  of  government  guaranteed  by  the  Constitution 
could  long  preserve  its  existence.  A  despotic  government  might. 


THE  COLLECTOR  v.  DAY.  227 

We  have  said  that  one  of  the  reserved  powers  was  that  to  estab- 
lish a  judicial  department;  it  would  have  been  more  accurate, 
and  in  accordance  with  the  existing  state  of  things  at  the  time, 
to  have  said  the  power  to  maintain  a  judicial  department  All 
of  the  thirteen  States  were  in  the  possession  of  this  power,  and 
had  exercised  it  at  the  adoption  of  the  Constitution ;  and  it  is  not 
pretended  that  any  grant  of  it  to  the  general  government  is 
found  in  that  instrument.  It  is,  therefore,  one  of  the  sovereign 
powers  vested  in  the  States  by  their  constitutions,  which  re- 
mained unaltered  and  unimpaired,  and  in  respect  to  which  the 
State  is  as  independent  of  the  general  government  as  that  gov- 
ernment is  independent  of  the  States, 

The  supremacy  of  the  general  government,  therefore,  so  much 
relied  on  in  the  argument  of  the  counsel  for  the  plaintiff  in  error, 
in  respect  to  the  question  before  us,  cannot  be  maintained.  The 
two  governments  are  upon  an  equality,  and  the  question  is 
whether  the  power  "to  lay  and  collect  taxes"  enables  the  genera] 
government  to  tax  the  salary  of  a  judicial  officer  of  the  State, 
which  officer  is  a  means  or  instrumentality  employed  to  carry 
into  execution  one  of  its  most  important  functions,  the  adminis- 
tration of  the  laws,  and  which  concerns  the  exercise  of  a  right 
reserved  to  the  States  T 

We  do  not  sav  the  mere  circumstance  of  the  establishment  of 
the  judicial  department,  and  the  appointment  of  officers  to  ad- 
minister the  laws,  being  among  the  reserved  powers  of  the  State, 
disables  the  general  government  from  levying  the  tax,  as  that 
depends  upon  the  express  power  "to  lay  and  collect  taxes,"  but  it 
shows  that  it  is  an  original  inherent  power  never  parted  with, 
and,  in  respect  to  which,  the  supremacy  of  that  government  does 
not  exist,  and  is  of  no  importance  in  determining  the  question ; 
and  further,  that  being  an  original  and  reserved  power,  and  the 
judicial  officers  appointed  under  it  being  a  means  or  instrumen- 
tality employed  to  carry  it  into  effect,  the  right  and  necessity  of 
its  unimpaired  exercise,  and  the  exemption  of  the  officer  from 
taxation  by  the  general  government  stand  upon  as  solid  a  ground, 
and  are  maintained  by  principles  and  reasons  as  cogent,  as  those 
which  led  to  the  exemption  of  the  Federal  officer  in  Dobbins  v. 
The  Commissioners  of  Erie  from  taxation  by  the  State;  for,  in 
this  respect,  that  is,  in  respect  to  the  reserved  powers,  the  State 
is  as  sovereign  and  independent  as  the  general  government.  And 
if  the  means  and  instrumentalities  employed  by  that  government 
to  carry  into  operation  the  powers  granted  to  it  are,  necessarily, 
and,  for  the  sake  of  self-preservation,  exempt  from  taxation  by 


228  CASES  ON  CONSTITUTIONAL  LAW. 

the  States,  why  are  not  those  of  the  States  depending  upon  their 
reserved  powers,  for  like  reasons,  equally  exempt  from  Federal 
taxation  ?  Their  unimpaired  existence  in  the  one  case  is  as  essen- 
tial as  in  the  other.  It  is  admitted  that  there  is  no  express  pro- 
vision in  the  Constitution  that  prohibits  the  general  government 
from  taxing  the  means  and  instrumentalities  of  the  States,  nor 
is  there  any  prohibiting  the  States  from  taxing  the  means  and 
instrumentalities  of  that  government.  In  both  cases  the  exemp- 
tion rests  upon  necessary  implication,  and  is  upheld  by  the  great 
law  of  self-preservation;  as  any  government,  whose  means  em- 
ployed in  conducting  its  operations,  if  subject  to  the  control  of 
another  and  distinct  government,  can  exist  only  at  the  mercy  of 
that  government.  Of  what  avail  are  these  means  if  another 
power  may  tax  them  at  discretion? 

But  we  are  referred  to  the  Veazie  Bank  v.  Fenno,  8  Wallace, 
533,  in  support  of  this  power  of  taxation.  That  case  furnishes  a 
strong  illustration  of  the  position  taken  by  the  Chief  Justice  in 
McCulloch  v.  Maryland,  namely,  "That  the  power  to  tax  involves 
the  power  to  destroy." 

The  power  involved  was  one  which  had  been  exercised  by  the 
States  since  the  foundation  of  the  government,  and  had  been, 
after  the  lapse  of  three-quarters  of  a  century,  annihilated  from 
excessive  taxation  by  the  general  government,  just  as  the  judi- 
cial office  in  the  present  case  might  be,  if  subject  at  all  to  taxation 
by  that  government.  But,  notwithstanding  the  sanction  of  this 
taxation  by  a  majority  of  the  court,  it  is  conceded,  in  the  opin- 
ion, that  ' '  the  reserved  rights  of  the  States,  such  as  the  right  to 
pass  laws ;  to  give  effect  to  laws  through  executive  action ;  to  ad- 
minister justice  through  th«  courts,  and  to  employ  all  necessary 
agencies  for  legitimate  purposes  of  State  government,  are  not 
proper  subjects  of  the  taxing  power  of  Congress."  This  con- 
cession covers  the  case  before  us,  and  adds  the  authority  of  this 
court  in  support  of  the  doctrine  which  we  have  endeavored  to 
maintain. 

Judgment  affirmed. 

MR.  JUSTICE  BRADLEY  dissenting.     .     .     . 

NOTE. — On  a  similar  state  of  facts  the  High  Court  of  Australia  reached 
the  same  result.  See  D'Emden  v.  Pedder  (1904),  1  Commonwealth  Law 
Eeports,  91,  and  Baxter  v.  Commissioners  of  Taxation  (1907),  4  Common- 
wealth Law  Eeports,  part  II,  1087. 


SOUTH  CAEOLINA  v.  UNITED  STATES.          229 

SOUTH  CAKOLINA  v.  UNITED  STATES. 

80PUEME  COURT  or  THE  UNITED  STATES.    1905. 
199  U.  8.  437;  50  Lawyers'  Ed.  26L 

Appeal  from  the  Court  of  Claims. 

By  several  statutes,  the  State  of  South  Carolina  established  dis- 
pensaries  for  the  wholesale  and  retail  sale  of  liquor,  and  pro- 
hibited sale  by  other  than  the  dispensers.  The  United  States 
demanded  the  license  taxes  prescribed  by  the  internal  revenue 
act  for  dealers  in  intoxicating  liquors,  and  the  dispensers  filed  the 
statutory  applications  for  such  licenses.  The  State,  sometimes 
in  cash  and  sometimes  by  warrant  on  its  treasury,  paid  the  taxes. 
No  protest  was  made  in  reference  to  these  payments  prior  to  April 
14,  1901.  On  that  day  a  formal  protest  by  the  state  dispensary 
commissioner  was  filed  with  the  United  States  collector  of  internal 
revenue  at  Columbia,  South  Carolina.  .  .  . 

The  dispensers  had  np  interest  in  the  sales,  and  received  no 
profit  therefrom.  The  entire  profits  were  appropriated  by  the 
State.  ...  In  the  year  1901  the  profits  arising  from  these 
sales  amounted  to  $545,248.12.  While  the  laws  of  South  Carolina 
prohibited  the  sale  of  liquor  by  individuals  other  than  the  dis- 
pensers, of  373  special  license  stamps  issued  in  that  State  by  the 
United  States  internal  revenue  collector,  only  112  were  to  dis- 
pensers, while  260  were  to  private  individuals.  Three  separate 
actions  were  commenced  in  the  Court  of  Claims  by  the  State  of 
South  Carolina  to  recover  the  amounts  paid  for  these  license  taxes. 
These  actions  were  consolidated.  Upon  a  hearing,  findings  of  fact 
were  made  and  a  judgment  entered  for  the  United  States.  39 
Court  of  Claims  Reports,  257.  Whereupon  the  State  appealed 
to  this  court. 

MB.  JUSTICE  BREWER,  .  .  .  delivered  the  opinion  of  the 
court: 

The  important  question  in  this  case  is,  whether  persons  who  are 
selling  liquor  are  relieved  from  liability  for  the  internal  revenue 
tax  by  the  fact  that  they  have  no  interest  in  the  profits  of  the  busi- 
ness, and  are  simply  the  agents  of  a  State  which,  in  the  exercise 
of  its  sovereign  power,  has  taken  charge  of  the  business  of  selling 
intoxicating  liquors.  .  .  .  - 

The  right  of  South  Carolina  to  control  the  sale  of  liquor  by  the 
dispensary  system  has  been  sustained.  Vance  v.  W.  A.  Vander- 
cook'Co.,  No.  1,  170  U.  S.  438.  The  profits  from  the  business  in 
the  year  1901,  as  appears  from  the  findings  of  fact,  were  over  half 
a  million  of  dollars.  Mingling  the  thought  of  profit  with  the 


230  CASES  ON  CONSTITUTIONAL  LAW. 

necessity  of  regulation  may  induce  the.  State  to  take  possession, 
in  like  manner,  of  tobacco,  oleomargarine,  and  all  other  objects 
of  internal  revenue  tax.  If  one  State  finds  it  thus  profitable, 
other  States  may  follow,  and  the  whole  body  of  internal  revenue 
tax  be  thus  stricken  down. 

More  than  this.  There  is  a  large  and  growing  movement  in  the 
country  in  favor  of  the  acquisition  and  management  by  the  public 
of  what  are  termed  ' '  public  utilities, ' '  including  not  merely  there- 
in the  supply  of  gas  and  water,  but  also  the  entire  railroad 
system.  Would  the  State,  by  taking  into  possession  these  public 
utilities,  lose  its  republican  form  of  government  ? 

We  may  go  even  a  step  further.  There  are  some  insisting  that 
the  State  shall  become  the  owner  of  all  property  and  the  manager 
of  all  business.  Of  course,  this  is  an  extreme  view,  but  its  advo- 
cates are  earnestly  contending  that  thereby  the  best  interests  of 
all  citizens  will  be  subserved.  If  this  change  should  be  made  in. 
any  State,  how  much  would  that  State  contribute  to  the  revenue 
of  the  nation  ?  If  this  extreme  action  is  not  to  be  counted  among 
the  probabilities,  consider  the  result  of  one  much  less  so.  Suppose 
a  State  assumes,  under  its  police  power,  the  control  of  all  those 
matters  subject  to  the  internal  revenue  tax,  and  also  engages  in 
the  business  of  importing  all  foreign  goods.  The  same  argument 
which  would  exempt  the  sale  by  a  State  of  liquor,  tobacco,  etc., 
from  a  license  tax,  would  exempt  the  importation  of  merchandise 
by  a  State  from  import  duty.  While  the  State  might  not  prohibit 
importations,  as  it  can  the  sale  of  liquor,  by  private  individuals, 
yet,  paying  no  import  duty,  it  could  undersell  all  individuals, 
and  so  monopolize  the  importation  and  sale  of  foreign  goods. 

Obviously,  if  the  power  of  the  State  is  carried  to  the  extent  sug- 
gested, and  at  the  same  time  relieved  from  all  Federal  taxation, 
the  National  Government  would  be  largely  crippled  in  its  rev- 
enues. Indeed,  if  all  the  States  should  concur  in  exercising  their 
powers  to  the  full  extent,  it  would  be  almost  impossible  for  the 
Nation  to  collect  any  revenues.  In  other  words,  in  this  indirect 
way  it  would  be  within  the  competency  of  the  States  to  practically 
destroy  the  efficiency  of  the  National  Government.  If  it  be  said 
that  the  States  can  be  trusted  not  to  resort  to  any  such  extreme 
measures,  because  of  the  resulting  interference  with  the  efficiency 
of  the  National  Government,  we  may  turn  to  the  opinion  of  Mr. 
Chief  Justice  Marshall  in  M'Culloch  v.  Maryland,  4  Wheat. 
431,  for  a  complete  answer: 

' '  But  is  this  a  case  of  confidence  ?  Would  the  people  of  any  one 
State  trust  those  of  another  with  a  power  to  control  the  most  in- 


SOUTH  CAROLINA  v.  UNITED  STATES.          231 

significant  operations  of  their  state  government  f  We  know  they 
would  not.  Why,  then,  should  \ve  suppose  that  the  people  of  any 
one  State  should  be  willing  to  trust  those  of  another  with  the  power 
to  control  the  operations  of  a  government  to  which  they  have  con- 
fided their  most  important  and  most  valuable  interests?  In  the 
legislature  of  the  Union  alone  are  all  represented.  The  legis- 
lature of  the  Union  alone,  therefore,  can  be  trusted  by  the  people 
with  the  power  of  controlling  measures  which  concern  all,  in  the 
confidence  that  it  will  not  be  abused." 

In  other  words,  we  are  to  find  in  the  Constitution  itself  the  full 
protection  to  the  Nation,  and  not  to  rest  its  sufficiency  on  either 
the  generosity  or  the  neglect  of  any  State. 

There  is  something  of  a  conflict  between  the  full  power  of  the 
Nation  in  respect  to  taxation  and  the  exemption  of  the  State 
from  Federal  taxation  in  respect  to  its  property  and  a  discharge 
of  all  its  functions.  Where  and  how  shall  the  line  between  them 
be  drawn  ?  We  have  seen  that  the  full  power  of  collecting  license 
taxes  is  in  terms  granted  to  the  National  Government,  with 
only  the  limitations  of  uniformity  and  the  public  benefit.  The 
exemption  of  the  State's  property  and  its  functions  from  Fed- 
eral taxation  is  implied  from  the  dual  character  of  our  Federal 
system  and  the  necessity  of  preserving  the  State  in  all  its  effi- 
ciency. In  order  to  determine  to  what  extent  that  implication 
will  go  we  must  turn  to  the  condition  of  things  at  the  time  the 
Constitution  was  framed.  What,  in  the  light  of  that  condition, 
did  the  framers  of  the  convention  intend  should  be  exempt? 
Certain  it  is  that  modern  notions  as  to  the  extent  to  which  the 
functions  of  a  State  may  be  carried  had  then  no  hold.  Whatever 
Utopian  theories  may  have  been  presented  by  any  writers  were 
regarded  as  mere  creations  of  fancy,  and  had  no  practical  recog- 
nition. It  is  true  that  monopolies  in  respect  to  certain  commodi- 
ties were  known  to  have  been  granted  by  absolute  monarchs,  but 
they  were  not  regarded  as  consistent  with  Anglo-Saxon  ideas  of 
government.  The  opposition  to  the  Constitution  came  not  from 
any  apprehension  of  danger  from  the  extent  of  power  ranrred 
to  the  States,  but,  on  the  other  hand,  entirely  through  fear  of 
what  might  result  from  the  exercise  of  the  powers  granted  to  tin- 
central  government.  While  many  believed  that  the  liberty  of 
the  people  depended  on  the  preservation  of  the  rights  of  the 
States,  they  had  no  thought  that  those  States  would  ext.-nd  th««ir 
functions  beyond  their  then  recognized  scope,  or  so  as  to  imperil 
the  life  of  the  nation.  As  well  said  by  Chief  Justice  Nott,  de- 


232  CASES  ON  CONSTITUTIONAL  LAW. 

livering  the  opinion  of  the  Court  of  Claims  in  this  case  (39  C. 
Cl.  284)  : 

"  Moreover,  at  the  time  of  the  adoption  of  the  Constitution, 
there  probably  was  not  one  person  in  the  country  who  seriously 
contemplated  the  possibility  of  government,  whether  State  or 
National,  ever  descending  from  its  primitive  plane  of  a  body 
politic  to  take  up  the  work  of  the  individual  or  body  corporate. 
The  public  suspicion  associated  government  with  patents  of  no- 
bility, with  an  established  church,  with  standing  armies,  and  dis- 
trusted all  governments.  Even  in  the  high  intelligence  of  the 
convention,  there  were  men  who  trembled  at  the  power  given  to 
the  President,  who  trembled  at  the  power  which  the  Senate  might 
usurp,  who  feared  that  the  life  tenure  of  the  judiciary  might 
imperil  the  liberties  of  the  people.  Certain  it  is  that  if  the  pos- 
sibility of  a  government  usurping  the  ordinary  business  of  indi- 
viduals, driving  them  out  of  the  market,  and  maintaining  place 
and  power  by  means  of  what  would  have  been  called,  in  the 
heated  invective  of  the  time,  '  a  legion  of  mercenaries, '  had  been 
in  the  public  mind,  the  Constitution  would  not  have  been  adopted, 
or  an  inhibition  of  such  power  would  have  been  placed  among 
Madison 's  amendments. ' ' 

Looking,  therefore,  at  the  Constitution  in  the  light  of  the  con- 
ditions surrounding  it  at  the  time  of  its  adoption,  it  is  obvious 
that  the  framers,  in  granting  full  power  over  license  taxes  to 
the  National  Government,  meant  that  the  power  should  be  com- 
plete, and  never  thought  that  the  States,  by  extending  their  func- 
tions, could  practically  destroy  it. 

If  we  look  upon  the  Constitution  in  the  light  of  the  common 
law,  we  are  led  to  the  same  conclusion.  All  the  avenues  of  trade 
were  open  to  the  individual.  The  Government  did  not  attempt 
to  exclude  him  from  any.  Whatever  restraints  were  put  upon 
him  were  mere  police  regulations  to  control  his  conduct  in  the 
business,  and  not  to  exclude  him  therefrom.  The  Government 
was  no  competitor,  nor  did  it  assume  to  carry  on  any  business 
which  ordinarily  is  carried  on  by  individuals.  Indeed,  every 
attempt  at  monopoly  was  odious  in  the  eyes  of  the  common  law, 
and  it  mattered  not  how  that  monopoly  arose,  whether  from  grant 
of  the  sovereign  or  otherwise.  The  framers  of  the  Constitution 
were  not  anticipating  that  a  State  would  attempt  to  monopolize 
any  business  heretofore  carried  on  by  individuals. 

Further,  it  may  be  noticed  that  the  tax  is  not  imposed  on  any 
property  belonging  to  the  State,  but  is  a  charge  on  a  business 
before  any  profits  are  realized  therefrom.  In  this  it  is  not  unlike 


SOUTH  CAROLINA  v.  UNITED  STAT  233 

the  taxes  sustained  in  United  States  v.  Perkins,  163  U.  S.  625, 
and  Snyder  v.  Bettman,  190  U.  S.  249. 

It  is  also  worthy  of  remark  that  the  cases  in  which  the  invalid- 
ity of  a  Federal  tax  has  been  affirmed  were  those  in  which  the  tax 
was  attempted  to  be  levied  upon  property  belonging  to  the  State, 
or  one  of  its  municipalities,  or  was  a  charge  upon  the  means  and 
instrumentalities  employed  by  the  State,  in  the  discharge  of  its 
ordinary  functions  as  a  government.  .  .  .  [The  court  here 
considers  Veazie  Bank  v.  Fenno,  8  Wall.  533,  The  Collector  v. 
Day,  11  Wall.  113,  United  States  v.  Railroad  Co.,  17  Wall.  322, 
and  Ambrosini  v.  United  States,  187  U.  S.  1.] 
OThese  decisions,  while  not  controlling  the  question  before  us, 
indicate  that  the  thought  has  been  that  the  exemption  of  state 
agencies  and  instrumentalities  from  National  taxation  is  limited 
to  those  which  are  of  a  strictly  governmental  character,  and  does 
not  extend  to  those  which  are  used  by  the  State  in  the  carrying 
on  of  an  ordinary  private  business. 

In  this  connection  may  be  noticed  the  well-established  distinc- 
tion between  the  duties  of  a  public  character  cast  upon  munici- 
pal corporations,  and  those  which  relate  to  what  may  be  consid- 
ered their  private  business,  and  the  different  responsibility  re- 
sulting in  case  of  negligence  in  respect  to  the  discharge  of  those 
duties.  The  Supreme  Court  of  Massachusetts,  speaking  by 
Mr.  Justice  Gray  (afterwards  an  Associate  Justice  of  this 
court),  in  Oliver  v.  Worcester,  102  Mass.  489,  499,  500,  observ.  .1 : 

"The  distinction  is  well  established  between  the  responsibili- 
ties of  towns  and  cities  for  acts  done  in  their  public  capacity, 
in  the  discharge  of  duties  imposed  upon  them  by  the  legisla- 
ture for  the  public  benefit,  and  for  acts  done  in  what  may  be 
called  their  private  character,  in  the  management  of  property 
or  rights  voluntarily  held  by  them  for  their  own  immediate  profit 
or  advantage  as  a  corporation,  although  inuring,  of  course,  ulti- 
mately to  the  benefit  of  the  public. 

"To  render  municipal  corporations  liable  to  private  actions  for 
omission  or  neglect  to  perform  a  corporate  duty  imposed  by  gen- 
eral law  on  all  towns  and  cities  alike,  and  from  the  performance 
of  which  they  derive  no  compensation  or  benefit  in  their  corpo- 
rate capacity,  an  express  statute  is  doubtless  necessary.  . 
44  But  this  rule  does  not  exempt  towns  and  cities  from  the  liability 
to  which  other  corporations  are  subject,  for  negligence  in  man- 
aging or  dealing  with  property  or  rights  held  by  them  for  their 
own  advantage  or  emolument."  .  .  .  [See  also  Lloyd  v.  New 
York,  5  N.  Y.  369;  Maxmilian  v.  NVw  York,  62  N.  Y.  160,  164; 


234  CASES  ON  CONSTITUTIONAL  LAW. 

Brown  v.  Vinalhaven,  65  Me.  402 ;  Mead  v.  New  Haven,  40  Conn. 
72;  Petersburg  v.  Applegarth,  28  Gratt.  321,  343;  Eastman  v. 
Meredith,  36  N.  H.  285 ;  Western  Saving  Fund  Society  v.  Phila- 
delphia, 31  Pa.  St.  175 ;  Bailey  v.  The  Mayor,  3  Hill,  531 ;  1  Dil- 
lon, Mun.  Corp.,  4th  ed.,  sec.  66.] 

Now,  if  it  be  well  established,  as  these  authorities  say,  that 
there  is  a  clear  distinction  as  respects  responsibility  for  negli- 
gence between  the  powers  granted  to  a  corporation  for  govern- 
mental purposes  and  those  in  aid  of  private  business,  a  like  dis- 
tinction may  be  recognized  when  we  are  asked  to  limit  the  full 
power  of  imposing  excises  granted  to  the  National  Government  by 
an  implied  inability  to  impede  or  embarrass  a  State  in  the  dis- 
charge of  its  functions.  It  is  reasonable  to  hold  that,  while  the 
former  may  do  nothing  by  taxation  in  any  form  to  prevent  the 
full  discharge  by  the  latter  of  its  governmental  functions,  yet, 
whenever  a  State  engages  in  a  business  which  is  of  a  private 
nature,  that  business  is  not  withdrawn  from  the  taxing  power  of 
the  Nation. 

For  these  reasons  we  think  that  the  license  taxes  charged  by  the 
Federal  Government  upon  persons  selling  liquor  are  not  invali- 
dated by  the  fact  that  they  are  the  agents  of  the  State,  which  has 
itself  engaged  in  that  business. 

The  judgment  of  the  Court  of  Claims  is  Affirmed. 

MR.  JUSTICE  WHITE,  with  whom  concur  MR.  JUSTICE  PECKHAM 
and  MR.  JUSTICE  MCKENNA,  dissenting.  .  .  . 


SECTION  3.    DIRECT  TAXES. 

No  capitation  or  other  direct  tax  shall  be  laid,  unless  in  propor- 
tion to  the  census  or  enumeration  hereinbefore  directed  to  be  taken. 
Constitution  of  the  United  States,  Art.  I,  §  9. 
The  Congress   shall  have   power  to  lay  and  collect  taxes  on 
incomes,    from   whatever    source    derived,    without    apportionment 
among  the  several  States,  and  without  regard  to  any  census  or 
enumeration. 

Constitution  of  the  United  States,  Amendment  XVI. 

HYLTON  v.  THE  UNITED  STATES. 

SUPREME  COURT  OF  THE  UNITED  STATES.    1796. 
3  Dallas,  171;  1  Lawyers'  Ed.  556. 

Writ  of  error  to  the  Circuit  Court  of  the  United  States  for 
the  District  of  Virginia.1 

i  Prior  to  the  appointment  of  Marshall  as  Chief  Justice,  it  was  customary 
for  all  the  members  of  the  Supreme  Court  to  render  opinions  ill  all  cases  of 


HYLTON  v.  UNITED  STATES.  L>  ;:, 

[The  question  involved  was  the  constitutionality  of  the  act 
of  Congress  of  June  5,  1794,  1  U.  S.  Stat.  at  Large,  373,  entitl.  .1 
"An  Act  to  lay  duties  upon  carriages  for  the  conveyance  of 
persons."] 

PATEESON,  J.  .  .  .  What  are  direct  taxes  within  the  mean- 
ing of  the  constitution  f  The  constitution  declares  that  a  capita- 
tion tax  is  a  direct  tax ;  and  both  in  theory  and  practice,  a  tax 
on  land  is  deemed  to  be  a  direct  tax.  In  this  way,  the  terms  direct 
taxes,  and  capitation  and  other  direct  tax,  are  satisfied.  It  is 
not  necessary  to  determine,  whether  a  tax  on  the  product  of 
land  be  a  direct  or  indirect  tax.  Perhaps  the  immediate  product 
of  land,  in  its  original  and  crude  state,  ought  to  be  considered 
as  the  land  itself ;  it  makes  part  of  it,  or  else  the  provision  made 
against  taxing  exports  would  be  easily  eluded.  Land,  inde- 
pendently of  its  produce,  is  of  no  value.  When  the  produce  is 
converted  into  a  manufacture  it  assumes  a  new  shape ;  its  nature 
is  altered,  its  original  state  is  changed,  it  becomes  quite  another 
subject,  and  it  will  be  differently  considered.  Whether  direct 
taxes,  in  the  sense  of  the  constitution,  comprehend  any  other  tax 
than  a  capitation  tax,  and  tax  on  land,  is  a  questionable  point 
If  congress,  for  instance,  should  tax,  in  the  aggregate  or  mass, 
things  that  generally  pervade  all  the  States  in  the  Union,  then 
perhaps  the  rule  of  apportionment  would  be  the  most  proper, 
especially  if  an  assessment  was  to  intervene.  This  appears,  by 
the  practice  of  some  of  the  States,  to  have  been  considered  as  a 
direct  tax.  Whether  it  be  so  under  the  constitution  of  the 
United  States  is  a  matter  of  some  difficulty;  but  as  it  is  not 
before  the  court,  it  would  be  improper  to  give  any  decisive 
opinion  upon  it.  I  never  entertained  a  doubt  that  the  principal, 
I  will  not  say  the  only  objects,  that  the  framers  of  the  constitu- 
tion contemplated  as  falling  within  the  rule  of  apportionment, 
were  a  capitation  tax  and  a  tax  on  land.  Local  considerations, 
and  the  particular  circumstances  and  relative  situation  of  the 
States,  naturally  led  to  this  view  of  the  subject  The  provision 
was  made  in  favor  of  the  southern  States.  They  possessed  a 
large  number  of  slaves;  they  had  extensive  tracts  of  territory, 

importance.  In  the  present  cose  Mr.  Chief  Justice  KlUworth  and  Mr. 
Justice  Gushing  did  not  render  opinions  because  they  had  been  but  recently 
appointed  and  had  not  heard  the  arguments,  and  Mr.  Justice  Wilson  rendered 
no  opinion  because  he  had  heard  the  case  in  the  Circuit  Court  The  opinion 
of  Mr.  Justice  Chase  is  omitted  since  the  same  ground  is  rove*e<!  in  the 
other  two  opinions. 


236  CASES  ON  CONSTITUTIONAL  LAW. 

thinly  settled  and  not  very  productive.  A  majority  of  the 
States  had  but  few  slaves,  and  several  of  them  a  limited  terri- 
tory, well  settled,  and  in  a  high  state  of  cultivation.  The  South- 
ern States,  if  no  provision  had  been  introduced  in  the  constitu- 
tion, would  have  been  wholly  at  the  mercy  of  the  other  States. 
Congress  in  such  case  might  tax  slaves,  at  discretion  or  arbitra- 
rily, and  land  in  every  part  of  the  Union  after  the  same  rate  or 
measure ;  so  much  a  head  in  the  first  instance,  and  so  much  an 
acre  in  the  second.  To  guard  them  against  imposition,  in  these 
particulars,  was  the  reason  of  introducing  the  clause  in  the  con- 
stitution which  directs  that  representatives  and  direct  taxes 
shall  be  apportioned  among  the  States  according  to  their  respec- 
tive numbers.  .  .  . 

All  taxes  on  expense  or  consumption  are  indirect  taxes.  A 
tax  on  carriages  is  of  this  kind,  and  of  course  is  not  a  direct  tax. 
Indirect  taxes  are  circuitous  modes  of  reaching  the  revenue  of 
individuals,  who  generally  live  according  to  their  income.  In 
many  cases  of  this  nature  the  individual  may  be  said  to  tax 
himself.  .  .  . 

I  am,  therefore,  of  opinion  that  the  judgment  rendered  in  the 
circuit  court  of  Virginia  ought  to  be  affirmed. 

IREDELL,  J.  I  agree  in  opinion  with  my  brothers,  who  have 
already  expressed  theirs,  that  the  tax  in  question  is  agreeable 
to  the  constitution ;  and  the  reasons  which  have  satisfied  me  can 
be  delivered  in  a  very  few  words,  since  I  think  the  constitution 
itself  affords  a  clear  guide  to  decide  the  controversy. 

The  congress  possess  the  power  of  taxing  all  taxable  objects, 
without  limitation,  with  the  -  particular  exception  of  a  duty  on 
exports. 

There  are  two  restrictions  only  on  the  exercise  of  this  author- 
ity- 

1.  All  direct  taxes  must  be  apportioned. 

2.  All  duties,  imposts  and  excises  must  be  uniform. 

If  the  carriage  tax  be  a  direct  tax,  within  the  meaning  of  the 
constitution,  it  must  be  apportioned.  If  it  be  a  duty,  impost,  or 
excise,  within  the  meaning  of  the  constitution,  it  must  be  uni- 
form. 

If  it  can  be  considered  as  a  tax,  neither  direct  within  the 
meaning  of  the  constitution,  nor  comprehended  within  the  term 
duty,  impost,  or  excise ;  there  is  no  provision  in  the  constitution, 
one  way  or  another,  and  then  it  must  be  left  to  such  an  operation 
of  the  power,  as  if  the  authority  to  lay  taxes  had  been  given 


HTLTON  v.  UNITED  STATES.  237 

generally  in  all  instances,  without  saying  whether  they  should 
be  apportioned  or  uniform ;  and  in  that  case,  I  should  presume 
the  tax  ought  to  be  uniform;  because  the  present  constitution 
was  particularly  intended  to  affect  individuals,  and  not  States, 
except  in  particular  cases  specified ;  and  this  is  the  leading  dis- 
tinction between  the  articles  of  confederation  and  the  present 
constitution. 

As  all  direct  taxes  must  be  apportioned,  it  is  evident  that  the 
constitution  contemplated  none  as  direct  but  such  as  could  be 
apportioned. 

If  this  cannot  be  apportioned,  it  is,  therefore,  not  a  direct  tax 
in  the  sense  of  the  constitution. 

That  this  tax  cannot  be  apportioned  is  evident  Suppose  ten 
dollars  contemplated  as  a  tax  on  each  chariot,  or  post  chaise,  in 
the  United  States,  and  the  number  of  both  in  all  the  United 
States  be  computed  at  one  hundred  and  five,  the  number  of 
representatives  in  congress, — this  would  produce  in  the  whole 
one  thousand  and  fifty  dollars;  the  share  of  Virginia,  being 
19-105  parts,  would  be  one  hundred  and  ninety  dollars;  the 
share  of  Connecticut,  being  7-105  parts,  would  be  seventy  dol- 
lars ;  then  suppose  Virginia  had  fifty  carriages,  Connecticut  two, 
the  share  of  Virginia  being  one  hundred  and  ninety  dollars,  this 
must  of  course  be  collected  from  the  owners  of  carriages,  and 
there  would  therefore  be  collected  from  each  carriage  three  dol- 
lars and  eighty  cents;  the  share  of  Connecticut  being  seventy 
dollars,  each  carriage  would  pay  thirty-five  dollars. 

If  any  State  had  no  carriages,  there  could  be  no  apportion- 
ment at  all.  This  mode  is  too  manifestly  absurd  to  be  supported, 
and  has  not  even  been  attempted  in  debate.  .  .  .' 

There  is  no  necessity  or  propriety  in  determining  what  is,  or 
is  not  a  direct  or  indirect  tax  in  all  cases. 

Some  difficulties  may  occur  which  we  do  not  at  present  fore- 
see. Perhaps  a  direct  tax,  in  the  sense  of  the  constitution,  can 
mean  nothing  but  a  tax  on  something  inseparably  annexed  to 

»On  this  point  MR.  JcsnCB  CHASE  said,  "The  constitution  evidently 
contemplated  no  taxes  as  direct  taxes,  but  only  such  as  congress  could  lay 
in  proportion  to  the  census.  The  rule  of  apportionment  is  only  to  be  adopted 
in  such  cases  where  it  can  reasonably  apply;  and  the  subject  taxed  most 
ever  determine  the  application  of  the  rule.  If  it  is  proposed  to  tax  any 
specific  article  by  the  rule  of  apportionment,  and  it  would  certainly  create 
great  inequality  and  injustice,  it  is  unreasonable  to  say  that  the  constitu- 
tion intended  such  tax  should  be  laid  by  that  rule."  3  Dallas,  174. 


238  CASES  ON  CONSTITUTIONAL  LAW. 

the  soil,  something  capable  of  apportionment  under  all  such 
circumstances. 

A  land  or  a  poll  tax  may  be  considered  of  this  description. 

The  latter  is  to  be  considered  so  particularly  under  the  present 
constitution,  on  account  of  the  slaves  in  the  southern  States,  who 
give  a  ratio  in  the  representation  in  the  proportion  of  three  to 
five. 

Either  of  these  is  capable  of  apportionment.  In  regard  to 
other  articles,  there  may  possibly  be  considerable  doubt. 

It  is  sufficient,  on  the  present  occasion,  for  the  court  to  be 
satisfied  that  this  is  not  a  direct  tax  contemplated  by  the  con- 
stitution, in  order  to  affirm  the  present  judgment;  since,  if  it 
cannot  be  apportioned,  it  must  necessarily  be  uniform. 

I  am  clearly  of  opinion  this  is  not  a  direct  tax  in  the  sense  of 
the  constitution,  and,  therefore,  that  the  judgment  ought  to  be 
affirmed.  .  .  . 

BY  THE  COURT.  Let  the  judgment  of  the  circuit  court  be 
affirmed. 


POLLOCK  v.  FARMERS'  LOAN  AND  TRUST  COMPANY. 

(Rehearing.) 

HYDE  v.  CONTINENTAL  TRUST  COMPANY.    (Rehearing.) 

SUPREME  COURT  op  THE  UNITED  STATES.    1895. 
158  U.  S.  601;  39  Lawyers'  Ed.  1108. 

Appeal  from  the  Circuit  Court  of  the  United  States  for  the 
Southern  District  of  New  York. 

[This  was  a  bill  filed  by  Charles  Pollock,  a  citizen  of  the  State 
of  Massachusetts,  on  behalf  of  himself  arid  all  other  stock-holders 
of  the  defendant  company  similarly  situated,  against  the  Farm- 
ers' Loan  and  Trust  Co.,  a  corporation  of  the  State  of  New 
York.  The  bill  alleged  that  the  defendant  claimed  authority 
under  the  provisions  of  the  act  of  Congress  of  August  15,  1894, 
to  pay  to  the  United  States  a  tax  of  two  per  centum  on  the  net 
profits  of  said  company,  including  the  income  derived  from 
real  estate  and  bonds  of  the  City  of  New  York  owned  by  it.  The 
bill  further  alleged  that  such  a  tax  was  unconstitutional,  null, 
and  void,  in  that  it  was  a  direct  tax  with  respect  to  the  income 
from  real  estate,  and  in  that  the  income  from  stocks  and  bonds 
of  the  States  of  the  United  States  and  counties  and  municipali- 
ties therein  is  not  subject  to  the  taxing  power  of  Congress.  The 


POLLOCK  v.  FARMERS'  L.  AND  T.  CO.  239 

bill  prayed  that  the  provisions  known  as  the  income  tax  incor- 
porated in  the  act  of  Congress  of  August  15,  1894,  might  be 
adjudged  unconstitutional,  null,  and  void,  and  that  the  defend- 
ants might  be  restrained  from  voluntarily  complying  with  such 
provisions.  On  April  8, 1895,  the  Court,  one  justice  being  absent, 
decided : 

"A  tax  on  the  rents  or  income  of  real  estate  is  a  direct  tax, 
within  the  meaning  of  that  term  as  used  in  the  Constitution  of 
the  United  States. 

"A  tax  upon  incomes  derived  from  the  interest  of  bonds  issued 
by  a  municipal  corporation  is  a  tax  upon  the  power  of  the  State 
and  its  instrumentalities  to  borrow  money,  and  is  consequently 
repugnant  to  the  Constitution  of  the  United  States. 

"Upon  each  of  the  other  questions  argued  at  bar,  to  wit: 
1.  Whether  the  void  provision  as  to  rent  and  income  from  real 
estate  invalidates  the  whole  actT  2.  Whether  as  to  the  income 
from  personal  property  as  such,  the  act  is  unconstitutional,  as 
laying  direct  taxes?  3.  Whether  any  part  of  the  tax,  if  not 
considered  as  a  direct  tax,  is  invalid  for  want  of  uniformity  on 
either  of  the  grounds  suggested? — The  Justices  who  heard  the 
argument  are  equally  divided,  and,  therefore,  no  opinion  is  ex- 
pressed." (157U.  S.,  429.) 

Inasmuch  as  the  cases  had  not  been  heard  by  a  full  court,  and 
since  the  question  upon  which  the  court  was  equally  divided  still 
lacked  authoritative  determination,  the  appellants  were  grant. -d 
a  rehearing.] 

MR.  CHIEF  JUSTICE  FUI^LER  delivered  the  opinion  of  the 
court.  .  .  . 

Our  previous  decision  was  confined  to  the  consideration  of 
the  validity  of  the  tax  on  the  income  from  real  estate,  and  on  the 
income  from  municipal  bonds.  The  question  thus  limited  was 
whether  such  taxation  was  direct  or  not,  in  the  meaning  of  the 
Constitution  ;  and  the  court  went  no  farther,  as  to  the  tax  on  the 
incomes  from  real  estate,  than  to  hold  that  it  fell  within  the  same 
class  as  the  source  whence  the  income  was  derived,  that  is,  that  a 
tax  upon  the  realty  and  a  tax  upon  the  receipts  therefrom  were 
alike  direct ;  while  as  to  the  income  from  municipal  bonds,  that 
could  not  be  taxed  because  of  want  of  power  to  tax  the  source, 
and  no  reference  was  made  to  the  nature  of  the  tax  being  direct 
or  indirect 

We  are  now  permitted  to  broaden  the  field  of  inquiry,  and 
determine  to  which  of  the  two  great  classes  a  tax  upon  a  per- 


240  CASES  ON  CONSTITUTIONAL  LAW. 

son's  entire  income,  whether  derived  from  rents,  or  products,  or 
otherwise,  of  real  estate,  or  from  bonds,  stocks  or  other  forms  of 
personal  property,  belongs;  and  we  are  unable  to  conclude  that 
the  enforced  subtraction  from  the  yield  of  all  the  owner's  real 
or  personal  property,  in  the  manner  prescribed,  is  so  different 
from  a  tax  upon  the  property  itself,  that  it  is  not  a  direct,  but  an 
indirect  tax,  in  the  meaning  of  the  Constitution.  .  .  . 

Whatever  the  speculative  views  of  political  economists  or  reve- 
nue reformers  may  be,  can  it  be  properly  held  that  the  Constitu- 
tion, taken  in  its  plain  and  obvious  sense,  and  with  due  regard  to 
the  circumstances  attending  the  formation  of  the  government, 
authorizes  a  general  unapportioned  tax  on  the  products  of  the 
farm  and  the  rents  of  real  estate,  although  imposed  merely 
because  of  ownership  and  with  no  possible  means  of  escape  from 
payment,  as  belonging  to  a  totally  different  class  from  that  which 
includes  the  property  from  whence  the  income  proceeds? 

There  can  be  only  one  answer,  unless  the  constitutional  restric- 
tion is  to  be  treated  as  utterly  illusory  and  futile,  and  the  object 
of  its  framers  defeated.  We  find  it  impossible  to  hold  that  a 
fundamental  requisition,  deemed  so  important  as  to  be  enforced 
by  two  provisions,  one  affirmative  and  one  negative,  can  be 
refined  away  by  forced  distinctions  between  that  which  gives 
value  to  property,  and  the  property  itself. 

Nor  can  we  conceive  any  ground  why  the  same  reasoning  does 
not  apply  to  capital  in  personalty  held  for  the  purpose  of  income 
or  ordinarily  yielding  income,  and  to  the  income  therefrom. 
All  the  real  estate  of  the  country,  and  all  its  invested  personal 
property,  are  open  to  the  direct  operation  of  the  taxing  power  if 
an  apportionment  be  made  according  to  the  Constitution.  The 
Constitution  does  not  say  that  no  direct  tax  shall  be  laid  by 
apportionment  on  any  other  property  than  land;  on  the  con- 
trary, it  forbids  all  unapportioned  direct  taxes;  and  we  know 
of  no  warrant  for  excepting  personal  property  from  the  exercise 
of  the  power,  or  any  reason  why  an  apportioned  direct  tax  can- 
not be  laid  and  assessed,  as  Mr.  Gallatin  said  in  his  report  when 
Secretary  of  the  Treasury  in  1812,  ''upon  the  same  objects  of 
taxation  on  which  the  direct  taxes  levied  under  the  authority  of 
the  State  are  laid  and  assessed."  .  .  . 

Nor  are  we  impressed  with  the  contention  that,  because  in  the 
four  instances  in  which  the  power  of  direct  taxation  has  been 
exercised,  Congress  did  not  see  fit,  for  reasons  of  expediency,  to 
levy  a  tax  upon  personalty,  this  amounts  to  such  a  practical 
construction  of  the  Constitution  that  the  power  did  not  exist, 


POLLOCK  v.  FARMERS'  L.  AND  T.  CO.  241 

that  we  must  regard  ourselves  bound  by  it.  We  should  regret 
to  be  compelled  to  hold  the  powers  of  the  general  government 
thus  restricted,  and  certainly  cannot  accede  to  the  idea  that  the 
Constitution  has  become  weakened  by  a  particular  course  of 
inaction  under  it. 

The  stress  of  the  argument  is  thrown,  however,  on  the  asser- 
tion that  an  income  tax  is  not  a  property  tax  at  all ;  that  it  is  not 
a  real  estate  tax,  nor  a  crop  tax,  nor  a  bond  tax ;  that  it  is  an 
assessment  upon  the  taxpayer  on  account  of  his  money-spending 
power  as  shown  by  his  revenue  for  the  year  preceding  the  assess- 
ment;  that  rents  received,  crops  harvested,  interest  collected, 
have  lost  all  connection  with  their  origin,  and  although  once  not 
taxable  have  become  transmuted  in  their  new  form  into  taxable 
subject-matter;  in  other  words,  that  income  is  taxable  irrespec- 
tive of  the  source  whence  it  is  derived. 

This  was  the  view  entertained  by  Mr.  Pitt,  as  expressed  in  his 
celebrated  speech  on  introducing  his  income-tax  law  of  1799, 
and  he  did  not  hesitate  to  carry  it  to  its  logical  conclusion.  The 
English  loan  acts  provided  that  the  public  dividends  should  be 
paid  "free  of  all  taxes  and  charges  whatsoever;"  but  Mr.  Pitt 
successfully  contended  that  the  dividends  for  the  purposes  of 
the  income  tax  were  to  be  considered  simply  in  relation  to  the 
recipient  as  so  much  income,  and  that  the  holder  had  no  reason 
to  complain.  And  this,  said  Mr.  Gladstone,  fifty-five  years  aft.-r, 
was  the  rational  construction  of  the  pledge.  Financial  State- 
ments, 32.  ... 

We  have  unanimously  held  in  this  case  that,  so  far  as  this  law 
operates  on  the  receipts  from  municipal  bonds,  it  cannot  be  sus- 
tained, because  it  is  a  tax  on  the  power  of  the  States,  and  on  their 
instrumentalities  to  borrow  money,  and  consequently  repugnant 
to  the  Constitution.  But  if,  as  contended,  the  interest  when  re- 
el has  become  merely  money  in  the  recipient's  pocket,  and 
taxable  as  such  without  reference  to  the  source  from  which  it 
came,  the  question  is  immaterial  whether  it  should  have  been 
originally  taxed  at  all  or  not.  This  was  admitted  by  the  Attorney 
General  with  characteristic  candor;  and  it  follows  that,  if  the 
revenue  derived  from  municipal  bonds  cannot  be  taxed  because 
the  source  cannot  be,  the  same  rule  applies  to  revenue  from  any 
other  source  not  subject  to  the  tax;  and  the  lack  of  power  to 
levy  any  but  an  apportioned  tax  on  real  estate  and  personal 
property  equally  exists  as  to  the  revenue  therefrom. 

Admitting  that  this  act  taxes  the  income  of  property  irre- 
spective of  its  source,  still  we  cannot  doubt  that  such  a  tax  is 

E.  c  L.— u 


242  CASES  ON  CONSTITUTIONAL  LAW. 

necessarily  a  direct  tax  in  the  meaning  of  the   Constitution. 

Being  direct,  and  therefore  to  be  laid  by  apportionment,  is 
there  any  real  difficulty  in  doing  so?  Cannot  Congress,  if  the 
necessity  exist  of  raising  thirty,  forty,  or  any  other  number  of 
million  dollars  for  the  support  of  the  government,  in  addition  to 
the  revenue  from  duties,  imposts,  and  excises,  apportion  the 
quota  of  each  State  upon  the  basis  of  the  census,  and  thus  advise 
it  of  the  payment  which  must  be  made,  and  proceed  to  assess  that 
amount  on  all  the  real  or  personal  property  and  the  income  of 
all  persons  in  the  State,  and  collect  the  same  if  the  State  does 
not  in  the  meantime  assume  and  pay  its  quota  and  collect  the 
amount  according  to  its  own  system  and  in  its  own  way  ?  Cannot 
Congress  do  this,  as  respects  either  or  all  these  subjects  of  taxa- 
tion, and  deal  with  each  in  such  manner  as  might  be  deemed 
expedient,  as  indeed  was  done  in  the  act  of  July  14,  1798,  c.  75, 
1  Stat.,  597?  Inconveniences  might  possibly  attend  the  levy 
of  an  income  tax,  notwithstanding  the  listing  of  receipts,  when 
adjusted,  furnishes  its  own  valuation ;  but  that  it  is  apportionable 
is  hardly  denied,  although  it  is  asserted  that  it  would  operate  so 
unequally  as  to  be  undesirable.  .  .  . 

We  have  considered  the  act  only  in  respect  of  the  tax  on  income 
derived  from  real  estate,  and  from  invested  personal  property, 
and  have  not  commented  on  so  much  of  it  as  bears  on  gains  or 
profits  from  business,  privileges,  or  employments,  in  view  of  the 
instances  in  which  taxation  on  business,  privileges,  or  employ- 
ments has  assumed  the  guise  of  an  excise  tax  and  been  sustained 
as  such. 

Being  of  opinion  that  so  much  of  the  sections  of  this  law  as 
lays  a  tax  on  income  from  real  and  personal  property  is  invalid, 
we  are  brought  to  the  question  of  the  effect  of  that  conclusion 
upon  these  sections  as  a  whole. 

It  is  elementary  that  the  same  statute  may  be  in  part  constitu- 
tional and  in  part  unconstitutional,  and  if  the  parts  are  wholly 
independent  of  each  other,  that  which  is  constitutional  may  stand 
while  that  which  is  unconstitutional  will  be  rejected.  And  in  the 
case  before  us  there  is  no  question  as  to  the  validity  of  this  act, 
except  sections  twenty-seven  to  thirty-seven,  inclusive,  which 
relate  to  the  subject  which  has  been  under  discussion ;  and  as  to 
them  we  think  that  the  rule  laid  down  by  Chief  Justice  Shaw  in 
Warren  v.  Charlestown,  2  Gray,  84,  is  applicable,  that  if  the  dif- 
ferent parts  "are  so  mutually  connected  with  and  dependent  on 
each  other,  as  conditions,  considerations  or  compensations  for 


POLLOCK  v.  FARMERS'  L.  AND  T.  CO.  243 

each  other,  as  to  warrant  the  belief  that  the  legislature  intended 
them  as  a  whole,  and  that,  if  all  could  not  be  carried  into  effect, 
tin-  legislature  would  not  pass  the  residue  independently,  and 
some  parts  are  unconstitutional,  all  the  provisions  which  are  thus 
dependent,  conditional  or  connected,  must  fall  with  them." 

[The  court  also  cited  Poindexter  v.  Greenhow,  114  U.  S.  270, 
304,  and  Spraigue  v.  Thompson,  118  U.  S.  90,  95.] 

According  to  the  census,  the  true  valuation  of  real  and  per- 
sonal property  in  the  United  States  in  1890  was  $65,037,091,197, 
of  which  real  estate  with  improvements  thereon  made  up  $39,- 
544,544,333.  Of  course,  from  the  latter  must  be  deducted,  in 
applying  these  sections,  all  unproductive  property  and  all  prop- 
erty whose  net  yield  does  not  exceed  four  thousand  dollars ;  but, 
even  with  such  deductions,  it  is  evident  that  the  income  from 
realty  formed  a  vital  part  of  the  scheme  for  taxation  embodied 
therein.  If  that  be  stricken  out,  and  also  the  income  from  all 
invested  personal  property,  bonds,  stocks,  investments  of  all 
kinds,  it  is  obvious  that  by  far  the  largest  part  of  the  anticipated 
revenue  would  be  eliminated,  and  this  would  leave  the  burden  of 
the  tax  to  be  borne  by  professions,  trades,  employments,  or  voca- 
tions; and  in  that  way  what  was  intended  as  a  tax  on  capital 
would  remain  in  substance  a  tax  on  occupations  and  labor.  We 
cannot  believe  that  such  was  the  intention  of  Congress.  We  do 
not  mean  to  say  that  such  an  act  laying  by  apportionment  a 
direct  tax  on  all  real  estate  and  personal  property,  or  the  income 
thereof,  might  not  also  lay  excise  taxes  on  business,  privileges, 
employments,  and  vocations.  But  this  is  not  such  an  act;  and 
the  scheme  must  be  considered  as  a  whole.  Being  invalid  as  to 
the  greater  part,  and  falling,  as  the  tax  would,  if  any  part  were 
held  valid,  in  a  direction  which  could  not  have  been  contemplated 
except  in  connection  with  the  taxation  considered  as  an  entirety, 
we  are  constrained  to  conclude  that  sections  twenty-seven  to 
thirty-seven,  inclusive,  of  the  act,  which  became  a  law  without 
the  signature  of  the  President  on  August  28,  1894,  are  wholly 
inoperative  and  void. 

Our  conclusions  may,  therefore,  be  summed  up  as  follows : 

First.  We  adhere  to  the  opinion  already  announced,  that, 
taxes  on  real  estate  being  indisputably  direct  taxes,  taxes  on  the 
rents  or  incomes  of  real  estate  are  equally  direct  taxes. 

Second.  We  are  of  opinion  that  taxes  on  personal  property, 
or  on  the  income  of  personal  property,  are  likewise  direct  taxes. 

Third.     The  tax  imposed  by  sections  twenty-seven  to  thirty- 


244  CASES  ON  CONSTITUTIONAL  LAW. 

seven,  inclusive,  of  the  act  of  1894,  so  far  as  it  falls  on  the  income 
of  real  estate  and  of  personal  property,  being  a  direct  tax  within 
the  meaning  of  the  Constitution,  and,  therefore,  unconstitutional 
and  void  because  not  apportioned  according  to  representation, 
all  those  sections,  constituting  one  entire  scheme  of  taxation,  are 
necessarily  invalid. 

The  decrees  hereinbefore  entered  in  this  court  will  be  vacated; 
the  decrees  below  will  be  reversed,  and  the  cases  remanded,  with 
instructions  to  grant  the  relief  prayed. 

[MR.  JUSTICE  HARLAN,  MR.  JUSTICE  BROWN,  MR.  JUSTICE 
JACKSON,  and  MR.  JUSTICE  WHITE  delivered  dissenting  opinions.] 


CHAPTER  VII. 
THE  REGULATION  OF  COMMERCE. 

The  Congress  shall  have  power.     .     . 

To  regulate  commerce  with  foreign  nations,  among  the  several 
States,  and  with  the  Indian  tribes. 

Constitution  of  the  United  States,  Art.  I,  tec.  8. 

No  tax  or  duty  shall  be  laid  on  articles  exported  from  anj 
State. 

No  preference  shall  be  given  by  any  regulation  of  commerce 
or  revenue  to  the  ports  of  one  State  over  those  of  another;  nor 
shall  vessels  bound  to  or  from  one  State  be  obliged  to  enter,  clear, 
or  pay  duties  in  another. 

Constitution  of  the  United  States,  Art.  I,  sec.  9. 

SECTION  1.    WHAT  is  COMMERCE. 
GIBBONS  v.  OGDEN. 

SUPREME  COURT  or  THE  UNITED  STATES.    1824. 
9  Wheaton,  1 ;  6  Lawyers '  Ed.  23. 

ERROR  to  the  court  for  the  trial  of  impeachments  and  correc- 
tion of  errors  of  the  State  of  New  York.  Aaron  Ogden  filed  his 
bill  in  the  court  of  chancery  of  that  State,  against  Thomas  Gib- 
bons, setting  forth  the  several  acts  of  the  legislature  thereof, 
enacted  for  the  purpose  of  securing  to  Robert  R.  Livingston  and 
Robert  Fulton  the  exclusive  navigation  of  all  the  waters  within 
the  jurisdiction  of  that  State,  with  boats  moved  by  fire  or  steam, 
for  a  term  of  years  which  has  not  yet  expired ;  and  authorizing 
the  chancellor  to  award  an  injunction,  restraining  any  person 
whatever  from  navigating  those  waters  with  boats  of  that  de- 
scription. The  bill  stated  an  assignment  from  Livingston  and 
Fulton  to  one  John  R.  Livingston,  and  from  him  to  the  complain- 
ant, Ogden,  of  the  right  to  navigate  the  waters  between  Eliza- 
licthtown,  and  other  places  in  New  Jersey,  and  the  city  of  New 
York;  and  that  Gibbons,  the  defendant  below,  was  in  possession 
of  two  steamboats,  called  The  Stoudinger  and  The  Bollona,  which 
werfc  actually  employed  in  running  between  New  York  and 
Eli/abethtown,  in  violation  of  the  exclusive  privilege  conferred 
on  the  complainant,  and  praying  an  injunction  to  restrain  the 

245 


246  CASES  ON  CONSTITUTIONAL  LAW. 

said  Gibbons  from  using  the  said  boats,  or  any  other  propelled 
by  fire  or  steam,  in  navigating  the  waters  within  the  territory 
of  New  York.  The  injunction  having  been  awarded,  the  answer 
of  Gibbons  was  filed,  in  which  he  stated  that  the  boats  employed 
by  him  were  duly  enrolled  and  licensed,  to  be  employed  in  carry- 
ing on  the  coasting  trade,  under  the  act  of  Congress,  passed  the 
18th  of  February,  1793,  c.  8  (1  Stats,  at  Large,  305),  entitled, 
"An  act  for  enrolling  and  licensing  ships  and  vessels  to  be  em- 
ployed in  the  coasting  trade  and  fisheries,  and  for  regulating  the 
same."  And  the  defendant  insisted  on  his  right,  in  virtue  of 
such  licenses,  to  navigate  the  waters  between  Elizabethtown  and 
the  city  of  New  York,  the  said  acts  of  the  legislature  of  the 
State  of  New  York  to  the  contrary  notwithstanding.  At  the 
hearing,  the  chancellor  perpetuated  the  injunction,  being  of  the 
opinion  that  the  said  acts  were  not  repugnant  to  the  constitution 
and  laws  of  the  United  States,  and  were  valid.  This  decree  was 
affirmed  in  the  court  for  the  trial  of  impeachments  and  correc- 
tion of  errors,  which  is  the  highest  court  of  law  and  equity  in  the 
State,  before  which  the  cause  could  be  carried,  and  it  was  there- 
upon brought  to  this  court  by  writ  of  error.  .  .  . 

MARSHALL,  C.  J.,  delivered  the  opinion  of  the  court,  and,  after 
stating  the  case,  proceeded  as  follows : — r 

The  appellant  contends  that  this  decree  is  erroneous,  because 
the  laws  which  purport  to  give  the  exclusive  privilege  it  sustains 
are  repugnant  to  the  constitution  and  laws  of  the  United  States. 

They  are  said  to  be  repugnant, — 

1.  To  that  clause  in  the  constitution  which  authorizes  congress 
to  regulate  commerce. 

2.  To  that  which  authorizes  congress  to  promote  the  progress 
of  science  and  useful  arts. 

The  State  of  New  York  maintains  the  constitutionality  of  these 
laws;  and  their  legislature,  their  council  of  revision,  and  their 
judges,  have  repeatedly  concurred  in  this  opinion.  It  is  sup- 
ported by  great  names, — by  names  which  have  all  the  titles  to 
consideration  that  virtue,  intelligence,  and  office  can  bestow.  No 
tribunal  can  approach  the  decision  of  this  question  without  feel- 
ing a  just  and  real  respect  for  that  opinion  which  is  sustained  by 
such  authority;  but  it  is  the  province  of  this  court,  while  it  re- 
spects, not  to  bow  to  it  implicitly ;  and  the  judges  must  exercise, 
in  the  examination  of  the  subject,  that  understanding  which 
Providence  has  bestowed  upon  them,  with  that  independence 


GIBBONS  v.  OGDEN.  247 

which  the  people  of  the  United  States  expect  from  this  depart- 
ment of  the  government. 

As  preliminary  to  the  very  able  discussions  of  the  constitution 
which  we  have  heard  from  the  bar,  and  as  having  some  influence 
on  its  construction,  reference  has  been  made  to  the  political  situ- 
ation of  these  States,  anterior  to  its  formation.  It  has  been  said 
that  they  were  sovereign,  were  completely  independent,  and  were 
connected  with  each  other  only  by  a  league.  This  is  true.  But, 
when  these  allied  sovereigns  converted  their  league  into  a  govern- 
ment, when  they  converted  their  congress  of  ambassadors,  de- 
puted to  deliberate  on  their  common  concerns,  and  to  recommend 
measures  of  general  utility,  into  a  legislature;  empowered  to 
enact  laws  on  the  most  interesting  subjects,  the  whole  character 
in  which  the  States  appear  underwent  a  change,  the  extent  of 
which  must  be  determined  by  a  fair  consideration  of  the  instru- 
ment by  which  that  change  was  effected. 

This  instrument  contains  an  enumeration  of  powers  expressly 
granted  by  the  people  to  their  government.  It  has  been  said 
that  these  powers  ought  to  be  construed  strictly.  But  why  ought 
they  to  be  so  construed  f  Is  there  one  sentence  in  the  constitution 
which  gives  countenance  to  this  rule?  In  the  last  of  the  enu- 
merated powers,  that  which  grants,  expressly,  the  means  for 
carrying  all  others  into  execution,  congress  is  authorized  "to 
make  all  laws  which  shall  be  necessary  and  proper"  for  the  pur- 
pose. But  this  limitation  on  the  means  which  may  be  used,  is 
not  extended  to  the  powers  which  are  conferred ;  nor  is  there  one 
sentence  in  the  constitution,  which  has  been  pointed  out  by  the 
gentlemen  of  the  bar,  or  which  we  have  been  able  to  discern,  that 
prescribes  this  rule.  We  do  not,  therefore,  think  ourselves  justi- 
fied in  adopting  it.  What  do  gentlemen  mean  by  a  strict  con- 
struction ?  If  they  contend  only  against  that  enlarged  construc- 
tion, which  would  extend  words  beyond  their  natural  and  ob- 
vious import,  we  might  question  the  application  of  the  term,  but 
should  not  controvert  the  principle.  If  they  contend  for  that 
narrow  construction  which,  in  support  of  some  theory  not  to  be 
found  in  the  constitution,  would  deny  to  the  government  those 
powers  which  the  words  of  the  grant,  as  usually  understood,  im- 
port, and  which  are  consistent  with  the  general  views  and  objects 
of  the  instrument;  for  that  narrow  construction,  which  would 
cripple  the  government,  and  render  it  unequal  to  the  objects 
for  which  it  is  declared  to  be  instituted,  and  to  which  the  pow- 
ers given,  as  fairly  understood,  render  it  competent;  then  we 
cannot  perceive  the  propriety  of  this  strict  construction,  nor 


248  CASES  ON  CONSTITUTIONAL  LAW. 

adopt  it  as  the  rule  by  which  the  constitution  is  to  be  expounded. 
As  men  whose  intentions  require  no  concealment,  generally  em- 
ploy the  words  which  most  directly  and  aptly  express  the  ideas 
they  intend  to  convey,  the  enlightened  patriots  who  framed  our 
constitution,  and  the  people  who  adopted  it,  must  be  understood 
to  have  employed  words  in  their  natural  sense,  and  to  have  in- 
tended what  they  have  said.  If,  from  the  imperfection  of  human 
language,  there  should  be  serious  doubts  respecting  the  extent 
of  any  given  power,  it  is  a  well  settled  rule  that  the  objects  for 
which  it  was  given,  especially  when  those  objects  are  expressed 
in  the  instrument  itself,  should  have  great  influence  in  the  con- 
struction. We  know  of  no  reason  for  excluding  this  rule  from 
the  present  case.  The  grant  does  not  convey  power  which  might 
be  beneficial  to  the  grantor,  if  retained  by  himself,  or  which  can 
enure  solely  to  the  benefit  of  the  grantee;  but  is  an  investment 
of  power  for  the  general  advantage,  in  the  hands  of  agents 
selected  for  that  purpose;  which  power  can  never  be  exercised 
by  the  people  themselves,  but  must  be  placed  in  the  hands  of 
agents,  or  lie  dormant.  We  know  of  no  rule  for  construing  the 
extent  of  such  powers,  other  than  is  given  by  the  language  of 
the  instrument  which  confers  them,  taken  in  connection  with  the 
purposes  for  which  they  were  conferred. 

The  words  are :  ' '  Congress  shall  have  power  to  regulate  com- 
merce with  foreign  nations,  and  among  the  several  States,  and 
with  the  Indian  tribes."  The  subject  to  be  regulated  is  com- 
merce ;  and  our  constitution  being,  as  was  aptly  said  at  the  bar, 
one  of  enumeration,  and  not  of  definition,  to  ascertain  the  extent 
of  the  power,  it  becomes  necessary  to  settle  the  meaning  of  the 
word.  The  counsel  for  the  appellee  would  limit  it  to  traffic,  to 
buying  and  selling,  or  the  interchange  of  commodities,  and  do 
not  admit  that  it  comprehends  navigation.  This  would  restrict 
a  general  term,  applicable  to  many  objects,  to  one  of  its  signifi- 
cations. Commerce,  undoubtedly,  is  traffic,  but  it  is  something 
more, — it  is  intercourse.  It  describes  the  commercial  intercourse 
between  nations,  and  parts  of  nations,  in  all  its  branches,  and  is 
regulated  by  prescribing  rules  for  carrying  on  that  intercourse. 
The  mind  can  scarcely  conceive  a  system  for  regulating  com- 
merce between  nations  which  shall  exclude  all  laws  concerning 
navigation,  which  shall  be  silent  on  the  admission  of  the  vessels 
of  the  one  nation  into  the  ports  of  the  other,  and  be  confined  to 
prescribing  rules  for  the  conduct  of  individuals,  in  the  actual 
employment  of  buying  and  selling  or  of  barter. 

If  commerce  does  not  include  navigation,  the  government  of 


GIBBONS  v.  OGDKX  249 

the  Union  has  no  direct  power  over  that  subject,  and  can  make  no 
law  prescribing  what  shall  constitute  American  vessels,  or  requir- 
ing that  they  shall  be  navigated  by  American  seamen.  Yet  this 
power  has  been  exercised  from  the  commencement  of  the  govern- 
ment, has  been  exercised  with  the  consent  of  all,  and  has  been 
understood  by  all  to  be  a  commercial  regulation.  All  America 
understands,  and  has  uniformly  understood,  the  word  "com- 
merce" to  comprehend  navigation.  It  was  so  understood,  and 
must  have  been  so  understood,  when  the  constitution  was  framed. 
The  power  over  commerce,  including  navigation,  was  one  of  the 
primary  objects  for  which  the  people  of  America  adopted  their 
government,  and  must  have  been  contemplated  in  forming  it. 
The  convention  must  have  used  the  word  in  that  sense,  because 
all  have  understood  it  in  that  sense ;  and  the  attempt  to  restrict 
it  comes  too  late. 

If  the  opinion  that  "commerce,"  as  the  word  is  used  in  the 
constitution,  comprehends  navigation  also,  requires  any  addi- 
tional confirmation,  that  additional  confirmation  is,  we  think, 
furnished  by  the  words  of  the  instrument  itself.  It  is  a  rule 
of  construction  acknowledged  by  all,  that  the  exceptions  from  a 
power  mark  its  extent;  for  it  would  be  absurd,  as  well  as  use- 
less, to  except  from  a  granted  power  that  which  was  not  granled, 
— that  which  the  words  of  the  grant  could  not  comprehend.  If, 
then,  there  are  in  the  constitution  plain  exceptions  from  the 
power  over  navigation,  plain  inhibitions  to  the  exercise  of  that 
power  in  a  particular  way,  it  is  a  proof  that  those  who  made 
these  exceptions,  and  prescribed  these  inhibitions,  understood 
the  power  to  which  they  applied  as  being  granted. 

The  9th  section  of  the  1st  article  declares  that  "no  preference 
shall  be  given,  by  any  regulation  of  commerce  or  revenue,  to  the 
ports  of  one  State  over  those  of  another."  This  clause  cannot 
be  understood  as  applicable  to  those  laws  only  which  are  passed 
for  the  purposes  of  revenue,  because  it  is  expressly  applied  to 
commercial  regulations;  and  the  most  obvious  preference  which 
can  be  given  to  one  port  over  another,  in  regulating  commerce, 
relates  to  navigation.  But  the  subsequent  part  of  the  sentence  is 
still  more  explicit.  It  is,  "nor  shall  vessels  bound  to  or  from 
one  State,  be  obliged  to  enter,  clear,  or  pay  duties  in  another." 
These  words  have  a  direct  reference  to  navigation. 

The  universally  acknowledged  power  of  the  government  to 
impose  embargoes  must  also  be  considered  as  showing  that  all 
America  is  united  in  that  construction  which  comprehends  navi- 
gation in  the  word  "commerce."  Gentlemen  have  said,  in  argu- 


250  CASES  ON  CONSTITUTIONAL  LAW. 

merit,  that  this  is  a  branch  of  the  war-making  power,  and  that 
an  embargo  is  an  instrument  of  war,  not  a  regulation  of  trade. 
That  it  may  be,  and  often  is,  used  as  an  instrument  of  war,  can- 
not be  denied.  An  embargo  may  be  imposed  for  the  purpose 
of  facilitating  the  equipment  or  manning  of  a  fleet,  or  for  the 
purpose  of  concealing  the  progress  of  an  expedition  preparing 
to  sail  from  a  particular  port.  In  these,  and  in  similar  cases,  it 
is  a  military  instrument,  and  partakes  of  the  nature  of  war.  But 
all  embargoes  are  not  of  this  description.  They  are  sometimes 
resorted  to  without  a  view  to  war,  and  with  a  single  view  to 
commerce.  In  such  case  an  embargo  is  no  more  a  war  measure 
than  a  merchantman  is  a  ship  of  war,  because  both  are  vessels 
which  navigate  the  ocean  with  sails  and  seamen. 

When  congress  imposed  that  embargo  which,  for  a  time,  en- 
gaged the  attention  of  every  man  in  the  United  States,  the  avowed 
object  of  the  law  was  the  protection  of  commerce  and  the  avoid- 
ing of  war.  By  its  friends  and  its  enemies  it  was  treated  as  a 
commercial,  not  as  a  war,  measure.  The  persevering  earnestness 
and  zeal  with  which  it  was  opposed,  in  a  part  of  our  country 
which  supposed  its  interests  to  be  vitally  affected  by  the  act, 
cannot  be  forgotten.  A  want  of  acuteness  in  discovering  objec- 
tions to  a  measure  to  which  they  felt  the  most  deep-rooted  hos- 
tility, will  not  be  imputed  to  those  who  were  arrayed  in  opposi- 
tion to  this.  Yet  they  never  suspected  that  navigation  was  no 
branch  of  trade,  and  was,  therefore,  not  comprehended  in  the 
power  to  regulate  commerce.  They  did,  indeed,  contest  the  con- 
stitutionality of  the  act,  but  on  a  principle  which  admits  the  con- 
struction for  which  the  appellant  contends.  They  denied  that 
the  particular  law  in  question  was  made  in  pursuance  of  the 
constitution,  not  because  the  power  could  not  act  directly  on 
vessels,  but  because  a  perpetual  embargo  was  the  annihilation, 
and  not  the  regulation,  of  commerce.  In  terms,  they  admitted 
the  applicability  of  the  words  used  in  the  constitution  to  vessels ; 
and  that,  in  a  case  which  produced  a  degree  and  an  extent  of 
excitement  calculated  to  draw  forth  every  principle  on  which 
legitimate  resistance  could  be  sustained.  No  example  could 
more  strongly  illustrate  the  universal  understanding  of  the 
American  people  on  this  subject. 

The  word  used  in  the  constitution,  then,  comprehends,  and  has 
been  always  understood  to  comprehend,  navigation  within  its 
meaning;  and  a  power  to  regulate  navigation  is  as  expressly 
granted  as  if  that  term  had  been  added  to  the  word  ''com- 


PAUL  v.  VIRGINIA.  251 

merce."     .     .     .     [The   remaining   portion   of  the   opinion    is 
printed  post,  page  263.] 

NOTE. — The  inability  of  the  Congress  under  the  Confederation  to  enforce 
the  commercial  treaties  which  it  had  made  with  other  countries  and  the 
dire  straits  to  which  interstate  commerce  had  been  reduced  by  the  hostile 
legislation  of  the  several  States  led  to  the  summoning  of  a  convention  at 
Annapolis  in  September,  1786,  "to  take  into  consideration  the  trade  of 
the  United  States, ' '  and  to  report  such  an  act  as  would  ' '  enable  the  United 
States  in  Congress  effectually  to  provide  for  the  same."  Elliot's  Debate*, 

I,  115.    The  principle  upon  which  any  effective  remedy  must  be  framed  had 
already  been  stated  by  Washington  in  a  letter  to  Jay,  August  1,  1786: 

I  do  not  conceive  we  can  exist  long  as  a  nation  without  having 
lodged  somewhere  a  power  which  will  pervade  the  whole  Union  in  as 
energetic  a  manner  as  the  authority  of  the  State  governments  ex- 
tends over  the  several  States. 

Evans,  Writings  of  Washington,  263. 

It  was  upon  this  principle  that  the  Federal  Convention  framed  the  new 
Constitution,  and  no  part  of  that  instrument  has  contributed  so  much  toward 
welding  the  several  States  into  a  national  unit  as  has  the  commerce  clause. 
The  principal  case  was  the  first  decision  of  the  Federal  Supreme  Court  in 
which  it  was  interpreted,  and  it  is  a  significant  indication  of  the  change 
which  has  come  over  the  economic  and  social  life  of  the  country  that  a 
clause  which  was  not  invoked  for  thirty-five  years  after  the  adoption  of 
the  Constitution  is  now  the  source  of  more  litigation  than  any  other  part  of 
that  instrument.  The  f  ramers  of  the  Constitution  felt  that  it  was  necessary 
to  vest  Congress  with  power  to  regulate  interstate  commerce  in  order  to 
make  its  control  over  foreign  commerce  effective.  See  Hamilton 's  argument 
in  The  Federalist,  No.  22,  and  Madison 's  in  No.  42.  For  the  history  of  the 
adoption  and  interpretation  of  the  commerce  clause  see  Bancroft,  History  of 
the  Constitution  of  the  United  States,  I,  184-209,  249-51,  267-278;  Brown, 
The  Commercial  Power  of  Congress;  Calvert,  The  Begulation  of  Commerce 
under  the  Federal  Constitution;  Cooke,  The  Commerce  Clause  of  the  Con- 
stitution; The  Federalist,  Nos.  7,  11,  22,  42;  Fiske,  The  Critical  Period  of 
American  History,  ch.  iv;  Judson,  The  Lav)  of  Interstate  Commerce; 
McLaughlin,  The  Confederation  and  the  Constitution;  Prentice  and  Egan, 
The  Commerce  Clause  of  the  Federal  Constitution;  Story,  Commentaries, 
sees.  1054-1101;  Willoughby,  The  Constitutional  Law  of  the  United  States, 

II,  629-773.    For  an  excellent  account  of  the  economic  background  of  the 
decision  in  Gibbons  v.  Ogden,  see  Prentice,  The  Federal  Power  over  Car- 
rier! and  Corporations,  ch.  iii. 


PAUL  v.  VIRGINIA. 

SUPREME  COUBT  or  THE  UNITED  STATES.    1868. 
8  Wallace,  168;  19  Lawyers'  Ed.  357. 

Error  to  the  Supreme  Court  of  Appeals  of  the  State  of  Vir- 
ginia. 


252  CASES  ON  CONSTITUTIONAL  LAW. 

[The  legislature  of  Virginia  passed  an  act  providing  that  no 
insurance  company  not  incorporated  in  that  State  should  carry 
on  its  business  in  that  State  without  first  depositing  certain 
bonds  of  a  specified  character  with  the  State  treasurer  and  re- 
ceiving from  him  a  license  to  do  business.  The  plaintiff,  agent 
in  Virginia  for  several  insurance  companies  incorporated  in 
New  York,  was  indicted,  convicted  and  sentenced  to  pay  a  fine 
for  failure  to  comply  with  the  requirements  of  the  statute.  One 
of  the  defenses  set  up  by  him  was  that  the  Virginia  statute  was  a 
regulation  of  interstate  commerce  and  hence  was  void.] 

MR.  JUSTICE  FIELD  .  .  .  delivered  the  opinion  of  the 
court.  .  .  . 

We  proceed  to  the  second  objection  urged  to  the  validity  of 
the  Virginia  statute,  which  is  founded  upon  the  commercial 
clause  of  the  Constitution.  It  is  undoubtedly  true,  as  stated  by 
counsel,  that  the  power  conferred  upon  Congress  to  regulate 
commerce  includes  as  well  commerce  carried  on  by  corporations 
as  commerce  carried  on  by  individuals.  At  the  time  of  the  for- 
mation of  the  Constitution  a  large  part  of  the  commerce  of  the 
world  was  carried  on  by  corporations.  The  East  India  Com- 
pany, the  Hudson's  Bay  Company,  the  Hamburgh  Company, 
the  Levant  Company,  and  the  Virginia  Company,  may  be  named 
among  the  many  corporations  then  in  existence  which  acquired, 
from  the  extent  of  their  operations,  celebrity  throughout  the 
commercial  world.  This  state  of  facts  forbids  the  supposition 
that  it  was  intended  in  the  grant  of  power  to  Congress  to  ex- 
clude from  its  control  the  commerce  of  corporations.  The  lan- 
guage of  the  grant  makes  no  reference  to  the  instrumentalities 
by  which  commerce  may  be  carried  on;  it  is  general,  and  in- 
cludes alike  commerce  by  individuals,  partnerships,  associations, 
and  corporations. 

There  is,  therefore,  nothing  in  the  fact  that  the  insurance 
companies  of  New  York  are  corporations  to  impair  the  force  of 
the  argument  of  counsel.  The  defect  of  the  argument  lies  in 
the  character  of  their  business.  Issuing  a  policy  of  insurance  is 
not  a  transaction  of  commerce.  The  policies  are  simple  contracts 
of  indemnity  against  loss  by  fire,  entered  into  between  the  cor- 
porations and  the  assured,  for  a  consideration  paid  by  the  lat- 
ter. These  contracts  are  not  articles  of  commerce  in  any  proper 
meaning  of  the  word.  They  are  not  subjects  of  trade  and  barter 
offered  in  the  market  as  something  having  an  existence  and  value 
independent  of  the  parties  to  them.  They  are  not  commodities 


PAUL  v.  VIRGINIA  253 

to  be  shipped  or  forwarded  from  one  State  to  another,  and  then 
put  up  for  sale.  They  are  like  other  personal  contracts  between 
parties  which  are  completed  by  their  signature  and  the  transfer 
of  the  consideration.  Such  contracts  are  not  interstate  trans- 
actions, though  the  parties  may  be  domiciled  in  different  States. 
The  policies  do  not  take  effect — are  not  executed  contracts — 
until  delivered  by  the  agent  in  Virginia.  They  are,  then,  local 
transactions,  and  are  governed  by  the  local  law.  They  do  not 
constitute  a  part  of  the  commerce  between  the  States  any  more 
than  a  contract  for  the  purchase  and  sale  of  goods  in  Virginia 
by  a  citizen  of  New  York  whilst  in  Virginia  would  constitute 
a  portion  of  such  commerce. 

In  Nathan  v.  Louisiana,  8  Howard,  73,  this  court  held  that  a 
law  of  that  State  imposing  a  tax  on  money  and  exchange  brokers, 
who  dealt  entirely  in  the  purchase  and  sale  of  foreign  bills  of 
exchange,  was  not  in  conflict  with  the  constitutional  power  of 
Congress  to  regulate  commerce.  The  individual  thus  using  his 
money  and  credit,  said  the  court,  "is  not  engaged  in  commerce, 
but  in  supplying  an  instrument  of  commerce.  He  is  less  con- 
nected with  it  than  the  shipbuilder,  without  whose  labor  foreign 
commerce  could  not  be  carried  on."  And  the  opinion  shows 
that,  although  instruments  of  commerce,  they  are  the  subjects 
of  State  regulation,  and,  inferentially,  that  they  may  be  sub- 
jects of  direct  State  taxation.  .  .  . 

If  foreign  bills  of  exchange  may  thus  be  the  subject  of  State 
regulation,  much  more  so  may  contracts  of  insurance  against 
loss  by  fire. 

We  perceive  nothing  in  the  statute  of  Virginia  which  con- 
flicts with  the  Constitution  of  the  United  States;  and  the  judg- 
ment of  the  Supreme.  Court  of  Appeals  of  that  State  must, 
therefore,  be  Affirmed. 

NOTE. — The  ruling  in  the  principal  case  as  to  a  contract  of  fire  insurance 
was  afterward  applied  to  a  contract  of  marine  insurance  (Hooper  v.  Cali- 
fornia [1895],  155  U.  8.  647)  and  to  a  contract  of  mutual  life  insurance 
(New  York  Life  Insurance  Co.  v.  Cravens  [1900],  178  IT.  8.  389).  The 
principal  case  has  been  much  criticized,  but  has  been  steadily  followed. 
Its  doctrine  was  reexamined  in  the  light  of  subsequent  decisions  and  was 
reaffirmed  in  New  York  Life  Insurance  Co.  v.  Deer  Lodge  County  (1913), 
231  U.  8.  495.  The  same  result  was  reached  by  the  House  of  Lords  in 
Citizen's  Insurance  Co.  v.  Parsons  (1881),  7  L.  R.  Appeal  CAMS,  06,  111. 
As  to  the  power  of  a  State  to  tax  the  business  of  a  foreign  insurance  com- 
pany.  done  within  its  limits,  see  Equitable  Life  Assurance  Society  v.  Penn 
•ylvania  (1915),  238  U.  S.  143. 


254      CASES  ON  CONSTITUTIONAL  LAW. 

PENSACOLA  TELEGRAPH  COMPANY  v.  WESTERN 
UNION  TELEGRAPH  COMPANY. 

SUPREME  COURT  OP  THE  UNITED  STATES.     1877. 
96  U.  S.  1;  24  Lawyers'  Ed.  708. 

Appeal  from  the  Circuit  of  the  United  States  for  the  North- 
ern District  of  Florida.  .  .  .  [The  Pensacola  Telegraph 
Co.  was  incorporated  in  1866  by  the  State  of  Florida,  and  grant- 
ed the  exclusive  right  to  establish  and  maintain  telegraph  lines 
in  certain  counties  of  Florida.  Later,  in  1874,  the  legislature 
of  Florida  empowered  a  railroad  company  to  erect  a  telegraph 
line  within  the  territory  of  the  exclusive  grant  to  the  Pensacola 
Company.  In  1866,  prior  to  the  passage  of  the  first  of  these 
acts,  Congress  had  enacted  that  telegraph  lines  might  be  estab- 
lished "through  and  over  any  portion  of  the  public  domain  of 
the  United  States,  over  and  along  any  of  the  military  and  post 
roads  of  the  United  States  which  have  been  or  may  hereafter  be 
declared  such  by  act  of  Congress,  and  over,  under,  or  across  the 
navigable  streams  and  waters  of  the  United  States."  In  June, 
1867,  the  defendants  had  filed  with  the  Postmaster-General  their 
acceptance  of  the  terms  of  the  act,  as  required  by  law.  In  1874 
the  railroad  company  above  mentioned  authorized  the  defend- 
ant to  erect  a  telegraph  line  upon  its  right  of  way,  whereupon 
the  plaintiff  sought  to  enjoin  the  construction  and  use  of  the 
line.] 

MR.  CHIEF  JUSTICE  WAITE  delivered  the  opinion  of  the 
court  .  .  . 

Since  the  ease  of  Gibbons  v.  Ogden  (9  Wheat.  1),  it  has  never 
been  doubted  that  commercial  intercourse  is  an  element  of  com- 
merce which  comes  within  the  regulating  power  of  Congress. 
Post-offices  and  post-roads  are  established  to  facilitate  the  trans- 
mission of  intelligence.  Both  commerce  and  the  postal  service 
are  placed  within  the  power  of  Congress,  because,  being  national 
in  their  operation,  they  should  be  under  the  protecting  care  of 
the  national  government. 

The  powers  thus  granted  are  not  confined  to  the  instrumental- 
ities of  commerce,  or  the  postal  system  known  or  in  use  when 
the  Constitution  was  adopted,  but  they  keep  pace  with  the  prog- 
ress of  the  country,  and  adapt  themselves  to  the  new  develop- 
ments of  times  and  circumstances.  They  extend  from  the  horse 
with  its  rider  to  the  stage-coach,  from  the  sailing-vessel  to  the 
steamboat,  from  the  coach  and  the  steamboat  to  the  railroad, 


PENSACOLA  TEL.  CO.  v.  W.  U.  TEL.  CO.         255 

and  from  the  railroad  to  the  telegraph,  as  these  new  agencies  are 
successively  brought  into  use  to  meet  the  demands  of  increas- 
ing population  and  wealth.  They  were  intended  for  the  gov- 
ernment of  the  business  to  which  they  relate,  at  all  times  and 
under  all  circumstances.  As  they  were  entrusted  to  the  general 
government  for  the  good  of  the  nation,  it  is  not  only  the  right, 
but  the  duty,  of  Congress  to  see  to  it  that  intercourse  among  the 
States  and  the  transmission  of  intelligence  are  not  obstructed  or 
unnecessarily  encumbered  by  State  legislation. 

The  electric  telegraph  marks  an  epoch  in  the  progress  of  time. 
In  a  little  more  than  a  quarter  of  a  century  it  has  changed  the 
habits  of  business,  and  become  one  of  the  necessities  of  commerce. 
It  is  indispensable  as  a  means  of  inter-communication,  but  es- 
pecially is  it  so  in  commercial  transactions.  The  statistics  of 
the  business  before  the  recent  reduction  in  rates  show  that  more 
than  eighty  per  cent  of  all  the  messages  sent  by  telegraph  related 
to  commerce.  Goods  are  sold  and  money  paid  upon  telegraphic 
orders.  Contracts  are  made  by  telegraphic  correspondence,  car- 
goes secured,  and  the  movement  of  ships  directed.  The  tele- 
graphic announcement  of  the  markets  abroad  regulates  prices  at 
home,  and  a  prudent  merchant  rarely  enters  upon  an  important 
transaction  without  using  the  telegraph  freely  to  secure  infor- 
mation. 

It  is  not  only  important  to  the  people,  but  to  the  govern- 
ment. By  means  of  it  the  heads  of  departments  in  Washington 
are  kept  in  close  communication  with  all  their  various  agencies 
at  home  and  abroad,  and  can  know  at  almost  any  hour,  by  in- 
quiry, what  is  transpiring  anywhere  that  affects  the  interest 
they  have  in  charge.  Under  such  circumstances,  it  cannot  for  a 
moment  be  doubted  that  this  powerful  agency  of  commerce  and 
inter-communication  comes  within  the  controlling  power  of  Con- 
gress, certainly  as  against  hostile  State  legislation.  In  fact,  from 
the  beginning,  it  seems  to  have  been  assumed  that  Congress 
might  aid  in  developing  the  system ;  for  the  first  telegraph  line 
of  any  considerable  extent  ever  erected  was  built  between  Wash- 
ington and  Baltimore,  only  a  little  more  than  thirty  years  ago, 
with  money  appropriated  by  Congress  for  that  purpose  (5  Stat. 
618) ;  and  large  donations  of  land  and  money  have  since  been 
made  to  aid  in  the  construction  of  other  lines  (12  Stat  489,  772; 
13  id.  365;  14  id.  292).  It  is  not  necessary  now  to  inquire 
whether  Congress  may  assume  the  telegraph  as  part  of  the  postal 
service,  and  exclude  all  others  from  its  use.  The  present  case 
is  satisfied,  if  we  find  that  Congress  has  power,  by  appropriate 


256  CASES  ON  CONSTITUTIONAL  LAW. 

legislation,  to  prevent  the  States  from  placing  obstructions  in 
the  way  of  its  usefulness. 

The  government  of  the  United  States,  within  the  scope  of  its 
powers,  operates  upon  every  foot  of  territory  under  its  juris- 
diction. It  legislates  for  the  whole  nation,  and  is  not  embar- 
rassed by  State  lines.  Its  peculiar  duty  is  to  protect  one  part 
of  the  country  from  encroachments  by  another  upon  the  national 
rights  which  belong  to  all. 

The  State  of  Florida  has  attempted  to  confer  upon  a  single 
corporation  the  exclusive  right  of  transmitting  intelligence  by 
telegraph  over  a  certain  portion  of  its  territory.  This  embraces 
the  two  westernmost  counties  of  the  State,  and  extends  from 
Alabama  to  the  Gulf.  No  telegraph  line  can  cross  the  State  from 
east  to  west,  or  from  north  to  south,  within  these  counties,  except 
it  passes  over  this  territory.  Within  it  is  situated  an  important 
seaport,  at  which  business  centers,  and  with  which  those  engaged 
in  commercial  pursuits  have  occasion  more  or  less  to  communi- 
cate. The  United  States  have  there  also  the  necessary  machin- 
ery of  the  national  government.  They  have  a  navy-yard,  forts, 
custom-houses,  courts,  post-offices,  and  the  appropriate  officers 
for  the  enforcement  of  the  laws.  The  legislation  of  Florida,  if 
sustained,  excludes  all  commercial  intercourse  by  telegraph  be- 
tween the  citizens  of  the  other  States  and  those  residing  upon 
this  territory,  except  by  the  employment  of  this  corporation. 
The  United  States  cannot  communicate  with  their  own  officers 
by  telegraph  except  in  the  same  way.  The  State,  therefore, 
clearly  has  attempted  to  regulate  commercial  intercourse  between 
its  citizens  and  those  of  other  States,  and  to  control  the  trans- 
mission of  all  telegraphic  correspondence  within  its  own  juris- 
diction. 

It  is  unnecessary  to  decide  how  far  this  might  have  been  done 
if  Congress  had  not  acted  upon  the  same  subject,  for  it  has  acted. 
The  statute  of  July  24,  1866,  in  effect,  amounts  to  a  prohibition 
of  all  State  monopolies  in  this  particular.  It  substantially  de- 
clares, in  the  interest  of  commerce  and  the  convenient  transmis- 
sion of  intelligence  from  place  to  place  by  the  government  of 
the  United  States  and  its  citizens,  that  the  erection  of  telegraph 
lines  shall,  so  far  as  State  interference  is  concerned,  be  free  to 
all  who  will  submit  to  the  conditions  imposed  by  Congress,  and 
that  corporations  organized  under  the  laws  of  one  State  for 
constructing  and  operating  telegraph  lines  shall  not  be  excluded 
by  another  from  prosecuting  their  business  within  its  jurisdic- 
tion, if  they  accept  the  terms  proposed  by  the  national  govern- 


PENSACOLA  TEL.  CO.  v.  W.  U.  TEL.  CO.         257 

ment  for  this  national  privilege.  To  this  extent,  certainly,  the 
statute  is  a  legitimate  regulation  of  commercial  intercourse 
among  the  States,  and  is  appropriate  legislation  to  carry  into 
execution  the  powers  of  Congress  over  the  postal  service.  It 
gives  no  foreign  corporation  the  right  to  enter  upon  private 
property  without  the  consent  of  the  owner  and  erect  the  neces- 
sary structures  for  its  business ;  but  it  does  provide,  that,  when- 
ever the  consent  of  the  owner  is  obtained,  no  State  legislation 
shall  prevent  the  occupation  of  post-roads  for  telegraph  purposes 
by  such  corporations  as  are  willing  to  avail  themselves  of  its 
privileges. 

It  is  insisted,  however,  that  the  statute  extends  only  to  such 
military  and  post  roads  as  are  upon  the  public  domain ;  but  this, 
we  think,  is  not  so.  The  language  is,  "Through  and  over  any 
portion  of  the  public  domain  of  the  United  States,  over  and 
along  any  of  the  military  or  post  roads  of  the  United  States 
which  have  been  or  may  hereafter  be  declared  such  by  act  of 
Congress,  and  over,  under,  or  across  the  navigable  streams  or 
waters  of  the  United  States."  There  is  nothing  to  indicate  an 
intention  of  limiting  the  effect  of  the  words  employed,  and  they 
are,  therefore,  to  be  given  their  natural  and  ordinary  significa- 
tion. Read  in  this  way,  the  grant  evidently  extends  to  the  pub- 
lic domain,  the  military  and  post  roads,  and  the  navigable  waters 
of  the  United  States.  These  are  all  within  the  domain  of  the 
national  government  to  the  extent  of  the  national  •  powers,  and 
are,  therefore,  subject  to  legitimate  congressional  regulation.  No 
question  arises  as  to  the  authority  of  Congress  to  provide  for  the 
appropriation  of  private  property  to  the  uses  of  the  telegraph, 
for  no  such  attempt  has  been  made.  The  use  of  public  property 
alone  is  granted.  If  private  property  is  required,  it  must,  so 
far  as  the  present  legislation  is  concerned,  be  obtained  by  pri- 
vate arrangement  with  its  owner.  No  compulsory  proceedings 
are  authorized.  State  sovereignty  under  the  Constitution  is  not 
interfered  with.  Only  national  privileges  are  granted. 

The  State  law  in  question,  so  far  as  it  confers  exclusive  rights 
upon  the  Pensacola  Company,  is  certainly  in  conflict  with  this 
legislation  of  Congress.  To  that  extent  it  is,  therefore,  inopera- 
tive as  against. a  corporation  of  another  State  entitled  to  the 
privileges  of  the  act  of  Congress.  Such  being  the  case,  the  char- 
ter of  the  Pensacola  Company  does  not  exclude  the  Western 
Union  Company  from  the  occupancy  of  the  right  of  way  of  the 

z.  c  L.— IT 


258  CASES  ON  CONSTITUTIONAL  LAW. 

Pensacola  and  Louisville  Railroad  Company  under  the  arrange- 
ment made  for  that  purpose.     .     .     .  Decree  affirmed. 

MR.  JUSTICE  FIELD  and  MR.  JUSTICE  HUNT  dissented. 


UNITED  STATES  v.  E.  C.  KNIGHT  CO. 

SUPREME  COURT  OP  THE  UNITED  STATES.     1895. 
156  U.  S.  1;  39  Lawyers'  Ed.  325. 

[This  was  a  bill  filed  by  the  United  States  against  the  E.  C. 
Knight  Company  and  four  other  corporations  and  charged  that 
they  had  entered  into  contracts  for  the  purchase  by  the  American 
Sugar  Refining  Company  of  the  shares  of  stock  and  the  property 
of  the  other  companies,  and  the  issuance  in  exchange  to  the  other 
companies  of  shares  of  stock  in  the  said  American  Sugar  Refin- 
ing Company;  that  these  contracts  were  entered  into  for  the 
purpose  of  obtaining  control  by  the  last  named  company  of  the 
price  of  sugar  in  the  United  States  and  monopolizing  the  manu- 
facture and  sale  of  refined  sugar  therein;  and  that  such  con- 
tracts were  in  violation  of  the  provisions  of  an  act  of  Congress 
approved  July  2,  1890,  entitled  "An  act  to  protect  trade  and 
commerce  against  unlawful  restraints  and  monopolies,"  26  Stat. 
209,  providing  "that  every  contract,  combination  in  the  form 
of  trust,  or  otherwise,  or  conspiracy  in  restraint  of  trade  and 
commerce  among  the  several  States  is  illegal,  and  that  persons 
who  shall  monopolize  or  shall  attempt  to  monopolize,  or  combine 
or  conspire  with  other  persons  to  monopolize  trade  and  commerce 
among  the  several  States,  shall  be  guilty  of  a  misdemeanor." 
The  petitioner  prayed  that  the  agreements  referred  to  be  can- 
celled and  declared  void  and  that  the  defendants  be  enjoined 
from  carrying  them  out  and  from  violating  said  act.] 

MR.  CHIEF  JUSTICE  FULLER  .  .  .  delivered  the  opinion 
of  the  court. 

By  the  purchase  of  the  stock  of  the  four  Philadelphia  refin- 
eries, with  shares  of  its  own  stock,  the  American  Sugar  Refining 
Company  acquired  nearly  complete  control  of  the  manufacture 
of  refined  sugar  within  the  United  States.  The  bill  charged  that 
the  contracts  under  which  these  purchases  were  made  constituted 
combinations  in  restraint  of  trade,  and  that  in  entering  into  them 
the  defendants  combined  and  conspired  to  restrain  the  trade 


UNITED  STATES  v.  E.  C.  KNIGHT  CO.  259 

and  commerce  in  refined  sugar  among  the  several  States  and 
with  foreign  nations,  contrary  to  the  act  of  Congress  of  July 
2,1890.  .  .  . 

The  fundamental  question  is,  whether  conceding  that  the  exist- 
ence of  a  monopoly  in  manufacture  is  established  by  the  evidence, 
that  monopoly  can  be  directly  suppressed  under  the  act  of  Con- 
gress in  the  mode  attempted  by  this  bill.  .  .  . 

The  argument  is  that  the  power  to  control  the  manufacture  of 
refined  sugar  is  a  monopoly  over  a  necessary  of  life,  to  the  enjoy- 
ment of  which  by  a  large  part  of  the  population  of  the  United 
States  interstate  commerce  is  indispensable,  and" that,  therefore, 
the  general  government  in  the  exercise  of  the  power  to  regulate 
commerce  may  repress  such  monopoly  directly  and  set  aside  the 
instruments  which  have  created  it  But  this  argument  cannot 
be  confined  to  necessaries  of  life  merely,  and  must  include  all 
articles  of  general  consumption.  Doubtless  the  power  to  control 
the  manufacture  of  a  given  thing  involves  in  a  certain  sense  the 
control  of  its  disposition,  but  this  is  a  secondary  and  not  the 
primary  sense;  and  although  the  exercise  of  that  power  may 
result  in  bringing  the  operation  of  commerce  into  play,  it  does 
not  control  it,  and  affects  it  only  incidentally  and  indirectly. 
Commerce  succeeds  to  manufacture,  and  is  not  a  part  of  it.  The 
power  to  regulate  commerce  is  the  power  to  prescribe  the  rule 
by  which  commerce  shall  be  governed,  and  is  a  power  indepen- 
dent of  the  power  to  suppress  monopoly.  But  it  may  operate  in 
repression  of  monopoly  whenever  that  comes  within  the  rules  by 
which  commerce  is  governed  or  whenever  the  transaction  is 
itself  a  monopoly  of  commerce.  . 

It  will  be  perceived  how  far-reaching  the  proposition  is  that 
the  power  of  dealing  with  a  monopoly  directly  may  be  exer> 
by  the  general  government  whenever  interstate  or  international 
commerce  may  be  ultimately  affected.  The-  regulation  of  com- 
merce applies  to  the  subjects  of  commerce  and  not  to  matters  of 
internal  police.  Contracts  to  buy,  sell,  or  exchange  goods  to  be 
transported  among  the  several  States,  the  transportation  and  its 
instrumentalities,  and  articles  bought,  sold  or  exchanged  for  the 
purposes  of  such  transit  among  the  States,  or  put  in  the  way  of 
transit,  may  be  regulated,  but  this  is  because  they  form  part  of 
int.-rstate  trade  or  commerce.  The  fact  that  an  article  is  manu- 
factured for  export  to  another  State  does  not  of  itself  make  it  an 
article  of  interstate  commerce,  and  the  intent  of  the  manufac- 
turer does  not  determine  the  time  when  the  article  or  product 
passes  from  the  control  of  the  State  and  belongs  to  commerce. 


260  CASES  ON  CONSTITUTIONAL  LAW. 

This  was  so  ruled  in  Coe  v.  Errol,  116  U.  S.  517,  525,  in  which 
the  question  before  the  court  was  whether  certain  logs  cut  at  a 
place  in  New  Hampshire  and  hauled  to  a  river  town  for  the  pur- 
pose of  transportation  to  the  State  of  Maine  were  liable  to  be 
taxed  like  other  property  in  the  State  of  New  Hampshire.  Mr. 
Justice  Bradley,  delivering  the  opinion  of  the  court,  said :  ' '  Does 
the  owner's  state  of  mind  in  relation  to  the  goods,  that  is,  his 
intent  to  export  them,  and  his  partial  preparation  to  do  so, 
exempt  them  from  taxation?  This  is  the  precise  question  for 
solution.  >  .  .  There  must  be  a  point  of  time  when  they 
cease  to  be  governed  exclusively  by  the  domestic  law  and  begin 
to  be  governed  and  protected  by  the  national  law  of  commercial 
regulation,  and  that  moment  seems  to  us  to  be  a  legitimate  one 
for  this  purpose,  in  which  they  commence  their  final  movement 
from  the  State  of  their  origin  to  that  of  their  destination." 

And  again,  in  Kidd  v.  Pearson,  128  U.  S.  1,  20,  21,  22,  where 
the  question  was  discussed  whether  the  right  of  a  State  to  enact 
a  statute  prohibiting  within  its  limits  the  manufacture  of  intoxi- 
cating liquors,  except  for  certain  purposes,  could  be  overthrown 
by  the  fact  that  the  manufacturer  intended  to  export  the  liquors 
when  made,  it  was  held  that  the  intent  of  the  manufacturer  did 
not  determine  the  time  when  the  article  or  product  passed  from 
the  control  of  the  State  and  belonged  to  commerce,  and  that, 
therefore,  the  statute,  in  omitting  to  except  from  its  operation 
the  manufacture  of  intoxicating  liquors  within  the  limits  of  the 
State  for  export,  did  not  constitute  an  unauthorized  interference 
with  the  right  of  Congress  to  regulate  commerce.  And  Mr.  Jus- 
tice Lamar  remarked:  "No  distinction  is  more  popular  to  the 
common  mind,  or  more  clearly  expressed  in  economic  and  polit- 
ical literature,  than  that  between  manufacture  and  commerce. 
Manufacture  is  transformation — the  fashioning  of  raw  materials 
into  a  change  of  form  for  use.  The  functions  of  commerce  are 
different.  The  buying  and  selling  and  the  transportation  inci- 
dental thereto  constitute  commerce;  and  the  regulation  of  com- 
merce in  the  constitutional  sense  embraces  the  regulation  at  least 
of  such  transportation.  .  .  .  If  it  be  held  that  the  term 
includes  the  regulation  of  all  such  manufactures  as  are  intended 
to  be  the  subject  of  commercial  transactions  in  the  future,  it  is 
impossible  to  deny  that  it  would  also  include  all  productive  indus- 
tries that  contemplate  the  same  thing.  The  result  would  be  that 
Congress  would  be  invested,  to  the  exclusion  of  the  States,  with 
the  power  to  regulate,  not  only  manufactures,  but  also  agricul- 
ture, horticulture,  stock  raising,  domestic  fisheries,  mining — in 


UNITED  STATES  v.  E.  C.  KNIGHT  CO.  261 

short,  every  branch  of  human  industry.  For  is  there  one  of  them 
that  does  not  contemplate,  more  or  less  clearly,  an  interstate  or 
foreign  market?  Does  not  the  wheat  grower  of  the  Northwest 
or  the  cotton  planter  of  the  South,  plant,  cultivate,  and  harvest 
his  crop  with  an  eye  on  the  prices  at  Liverpool,  New  York,  and 
Chicago?  The  power  being  vested  in  Congress  and  denied  to 
the  States,  it  would  follow  as  an  inevitable  result  that  the  duty 
would  devolve  on  Congress  to  regulate  all  of  these  delicate,  mul- 
tiform and  vital  interests — interests  which  in  their  nature  are 
and  must  be  local  in  all  the  details  of  their  successful  manage- 
ment. .  .  .  The  demands  of  such  a  supervision  would  re- 
quire, not  uniform  legislation  generally  applicable  throughout 
the  United  States,  but  a  swarm  of  statutes  only  locally  applicable 
and  utterly  inconsistent.  Any  movement  toward  the  establish- 
ment of  rules  of  production  in  this  vast  country,  with  its  many 
different  climates  and  opportunities,  could  only  be  at  the  sacri- 
fice of  the  peculiar  advantages  of  a  large  part  of  the  localities 
in  it,  if  not  of  every  one  of  them.  On  the  other  hand,  any  move- 
ment toward  the  local,  detailed  and  incongruous  legislation 
required  by  such  interpretation  would  be  about  the  widest  possi- 
ble departure  from  the  declared  object  of  the  clause  in  question. 
Nor  this  alone.  Even  in  the  exercise  of  the  power  contended  for, 
Congress  would  be  confined  to  the  regulation,  not  of  certain 
branches  of  industry,  however  numerous,  but  to  those  instances 
in  each  and  every  branch  where  the  producer  contemplated  an 
interstate  market.  These  instances  would  be  almost  infinite,  as 
we  have  seen ;  but  still  there  would  always  remain  the  possibility, 
and  often  it  would  be  the  case,  that  the  producer  contemplated 
a  domestic  market.  In  that  case  the  supervisory  power  must 
be  executed  by  the  State ;  and  the  interminable  trouble  would  be 
presented,  that  whether  the  one  power  or  the  other  should  exer- 
cise the  authority  in  question  would  be  determined,  not  by  any 
general  or  intelligible  rule,  but  by  the  secret  and  changeable 
intention  of  the  producer  in  each  and  every  act  of  production. 
A  situation  more  paralyzing  to  the  state  governments,  and  more 
provocative  of  conflicts  between  the  general  government  and  the 
States,  and  less  likely  to  have  been  what  the  framers  of  the  Con- 
stitution intended,  it  would  be  difficult  to  imagine."  And  Me 
Vearie  v.  Moor,  14  How.  568,  574.  .  .  . 

Contracts,  combinations,  or  conspiracies  to  control  domestic 
riiteVprise  in  manufacture,  agriculture,  mining,  production  in  all 
its  forms,  or  to  raise  or  lower  prices  or  wages,  might  unques- 
tionably tend  to  restrain  external  as  well  as  domestic  trade,  but 


262  CASES  ON  CONSTITUTIONAL  LAW. 

the  restraint  would  be  an  indirect  result,  however  inevitable  and 
whatever  its  extent,  and  such  result  would  not  necessarily  deter- 
mine the  object  of  the  contract,  combination,  or  conspiracy. 

It  was  in  the  light  of  well-settled  principles  that  the  act  of 
July  2,  1890,  was  framed.  Congress  did  not  attempt  thereby  to 
assert  the  power  to  deal  with  monopoly  directly  as  such ;  or  to 
limit  and  restrict  the  rights  of  corporations  created  by  the  States 
or  the  citizens  of  the  States  in  the  acquisition,  control,  or  dispo- 
sition of  property ;  or  to  regulate  or  prescribe  the  price  or  prices 
at  which  such  property  or  the  products  thereof  should  be  sold ; 
or  to  make  criminal  the  acts  of  persons  in  the  acquisition  and 
control  of  property  which  the  States  of  their  residence  or  crea- 
tion sanctioned  or  permitted.  Aside  from  the  provisions  applica- 
ble where  Congress  might  exercise  municipal  power,  what  the  law 
struck  at  was  combinations,  contracts,  and  conspiracies  to  monop- 
olize trade  and  commerce  among  the  several  States  or  with 
foreign  nations;  but  the  contracts  and  acts  of  the  defendants 
related  exclusively  to  the  acquisition  of  the  Philadelphia  refin- 
eries and  the  business  of  sugar  refining  in  Pennsylvania,  and 
bore  no  direct  relation  to  commerce  between  the  States  or  with 
foreign  nations.  The  object  was  manifestly  private  gain  in  the 
manufacture  of  the  commodity,  but  not  through  the  control  of 
interstate  or  foreign  commerce.  It  is  true  that  the  bill  alleged 
that  the  products  of  these  refineries  were  sold  and  distributed 
among  the  several  States,  and  that  all  the  companies  were 
engaged  in  trade  or  commerce  with  the  several  States  and  with 
foreign  nations ;  but  this  was  no  more  than  to  say  that  trade  and 
commerce  served  manufacture  to  fulfil  its  function.  Sugar  was 
refined  for  sale,  and  sales  were  probably  made  at  Philadelphia 
for  consumption,  and  undoubtedly  for  resale  by  the  first  pur- 
chasers throughout  Pennsylvania  and  other  States,  and  refined 
sugar  was  also  forwarded  by  the  companies  to  other  States  for 
sale.  Nevertheless  it  does  not  follow  that  an  attempt  to  monopo- 
lize, or  the  actual  monopoly  of,  the  manufacture  was  an  attempt, 
whether  executory  or  consummated,  to  monopolize  commerce, 
even  though,  in  order  to  dispose  of  the  product,  the  instrumen- 
tality of  commerce  was  necessarily  invoked.  There  was  nothing 
in  the  proofs  to  indicate  any  intention  to  put  a  restraint  upon 
trade  or  commerce,  and  the  fact,  as  we  have  seen,  that  trade  or 
commerce  might  be  indirectly  affected  was  not  enough  to  entitle 
complainants  to  a  decree.  The  subject-matter  of  the  sale  was 
shares  of  manufacturing  stock,  and  the  relief  sought  was  the  sur- 


GIBBONS  v.  OGDK.Y  263 

render  of  property  which  had  already  passed  and  the  suppression 
of  the  alleged  monopoly  in  manufacture  by  the  restoration  of  the 
status  quo  before  the  transfers;  yet  the  act  of  Congress  only 
authorized  the  Circuit  Courts  to  proceed  by  way  of  preventing 
and  restraining  violations  of  the  act  in  respect  of  contracts,  com- 
binations, or  conspiracies  in  restraint  of  interstate  or  interna- 
tional trade  or  commerce. 

The  Circuit  Court  declined,  upon  the  pleadings  and  proofs, 
to  grant  the  relief  prayed,  and  dismissed  the  bill,  and  we  are  of 
opinion  that  the  Circuit  Court  of  Appeals  did  not  err  in  affirm- 
ing that  decree.  Decree  affirmed. 

MR.  JUSTICE  HARLAN,  dissenting.    .     .     . 

NOTE. — Compare  Montague  &  Co.  v.  Lowry  (1904),  193  U.  8.  38,  which 
deals  with  a  combination  between  manufacturers  of  tiles  and  dealers  therein. 

The  term  commerce  not  only  includes  navigation  (Pennsylvania  v.  Wheel- 
ing Bridge  Co.  [1852],  13  Howard,  519;  Oilman  v.  Philadelphia  [1865], 
3  Wallace,  713;  Head  Money  Cases  [1884],  112  U.  8.  580),  but  the  trans- 
portation by  whatever  agencies  of  commodities  (United  States  v.  Trans- 
Missouri  Freight  Association  [1897],  166  U.  8.  290),  or  of  passengers  (The 
Passenger  Cases  [1849],  7  Howard,  283),  even  on  foot  (Covington  Bridge 
Co.  v.  Kentucky  [1894],  154  U.  8.  204),  or  the  transmission  of  ideas  (Inter 
national  Text-Book  Co.  v.  Pigg  [1910],  217  U.  8.  91),  and  it  is  immaterial 
whether  such  transportation  is  connected  with  a  sale  (Hanley  v.  Kansas 
City  Southern  Ry.  [1903],  187  U.  S.  617).  Included  in  the  term  transporta- 
tion are  all  the  services  in  connection  with  the  receipt  of  the  property 
transported  (Houston  &  Texas  Central  Ry.  v.  Mayes  [1906],  201  U.  S.  321). 

A  contract  may  or  may  not  be  a  transaction  of  interstate  commerce.  If 
it  is  in  the  form  of  a  bill  of  lading,  it  is  (Almy  v.  California  [1860],  24 
Howard,  169;  Woodruff  v.  Parham  [1870],  8  Wallace,  123),  but  if  in  the 
form  of  a  bill  of  exchange  (Nathan  v.  Louisiana  [1850],  8  Howard,  73) 
or  of  a  contract  to  perform  labor  outside  the  State  (Williams  v.  Fear 
[1900],  179  U.  8.  270),  or  of  a  contract  for  future  delivery  to  be  executed 
in  another  State  (Ware  &  Leland  v.  Mobile  County  [1908],  209  U.  8.  405), 
or  of  the  contract  of  a  private  banker  with  his  depositors  (Engel  v. 
O'Malley  [1911],  219  U.  8.  128),  it  is  not 


SECTION  2.    FEDERAL  JURISDICTION  OVER  COMMERCE. 

GIBBONS  v.  OGDEN. 

SUPREME  COURT  or  THE  UNITED  STATES.    1824. 
.      9  Wheaton,  1 ;  6  Lawyers '  Ed.  23. 

[The  statement  of  facts  and  the  first  part  of  the  opinion  are 
given  ante,  page  245.] 

To  what  commerce  does  this  power  extend?   The  constitution 


264  CASES  ON  CONSTITUTIONAL  LAW. 

informs  us,  to  commerce  "with  foreign  nations,  and  among  the 
several  States,  and  with  the  Indian  tribes."  It  has,  we  believe, 
been  universally  admitted  that  these  words  comprehend  every 
species  of  commercial  intercourse  between  the  United  States  and 
foreign  nations.  No  sort  of  trade  can  be  carried  on  between  this 
country  and  any  other  to  which  this  power  does  not  extend.  It 
has  been  truly  said  that  commerce,  as  the  word  is  used  in  the 
constitution,  is  a  unit,  every  part  of  which  is  indicated  by  the 
term.  If  this  be  the  admitted  meaning  of  the  word,  in  its  appli- 
cation to  foreign  nations,  it  must  carry  the  same  meaning 
throughout  the  sentence,  and  remain  a  unit,  unless  there  be 
some  plain  intelligible  cause  which  alters  it. 

The  subject  to  which  the  power  is  next  applied  is  to  commerce 
''among  the  several  States."  The  word  "among"  means  inter- 
mingled with.  A  thing  which  is  among  others  is  intermingled 
with  them.  Commerce  among  the  States  cannot  stop  at  the  ex- 
ternal boundary  line  of  each  State,  but  may  be  introduced  into 
the  interior. 

It  is  not  intended  to  say  that  these  words  comprehend  that 
commerce  which  is  completely  internal,  which  is  carried  on  be- 
tween man  and  man  in  a  State,  or  between  different  parts  of  the 
same  State,  and  which  does  not  extend  to  or  affect  other  States. 
Such  a  power  would  be  inconvenient  and  is  certainly  unneces- 
sary. 

Comprehensive  as  the  word  "among"  is,  it  may  very  properly 
be  restricted  to  that  commerce  which  concerns  more  States  than 
one.  The  phrase  is  not  one  which  would  probably  have  been 
selected  to  indicate  the  completely  interior  traffic  of  a  State,  be- 
cause it  is  not  an  apt  phrase- for  that  purpose;  and  the  enumera- 
tion of  the  particular  classes  of  commerce  to  which  the  power 
was  to  be  extended  would  not  have  been  made  had  the  intention 
been  to  extend  the  power  to  every  description.  The  enumera- 
tion presupposes  something  not  enumerated;  and  that  some- 
thing, if  we  regard  the  language  or  the  subject  of  the  sentence, 
must  be  the  exclusively  internal  commerce  of  a  State.  The 
genius  and  character  of  the  whole  government  seem  to  be,  that 
its  action  is  to  be  applied  to  all  the  external  concerns  of  the 
nation,  and  to  those  internal  concerns  which  affect  the  States 
generally;  but  not  to  those  which  are  completely  within  a  par- 
ticular State,  which  do  not  affect  other  States,  and  with  which 
it  is  not  necessary  to  interfere  for  the  purpose  of  executing  some 
of  the  general  powers  of  the  government.  The  completely  in- 


GIBBONS  v.  OQDEN  265 

ternal  commerce  of  a  State,  then,  may  be  considered  as  reserved 
for  the  State  itself. 

But,  in  regulating  commerce  with  foreign  nations,  the  power 
of  congress  does  not  stop  at  the  jurisdictional  lines  of  the  several 
States.  It  would  be  a  very  useless  power  if  it  could  not  pass 
those  lines.  The  commerce  of  the  United  States  with  foreign 
nations  is  that  of  the  whole  United  States.  Every  district  has  a 
right  to  participate  in  it.  The  deep  streams  which  penetrate 
our  country  in  every  direction  pass  through  the  interior  of  al- 
most every  State  in  the  Union,  and  furnish  the  means  of  exer- 
cising this  right.  If  congress  has  the  power  to  regulate  it,  that 
power  must  be  exercised  whenever  the  subject  exists.  If  it 
exists  within  the  States,  if  a  foreign  voyage  may  commence  or 
terminate  at  a  port  within  a  State,  then  the  power  of  congress 
may  be  exercised  within  a  State. 

This  principle  is,  if  possible,  still  more  clear  when  applied  to 
commerce  "among  the  several  States."  They  either  join  each 
other,  in  which  case  they  are  separated  by  a  mathematical  line, 
or  they  are  remote  from  each  other,  in  which  case  other  States 
lie  between  them.  "What  is  commerce  "among"  them;  and  how 
is  it  to  be  conducted?  Can  a  trading  expedition  between  two 
adjoining  States  commence  and  terminate  outside  of  each  ?  And 
if  the  trading  intercourse  be  between  two  States  remote  from 
each  other,  must  it  not  commence  in  one,  terminate  in  the  other, 
and  probably  pass  through  a  third  ?  Commerce  among  the  States 
must,  of  necessity,  be  commerce  with  the  States.  In  the  regula- 
tion of  trade  with  the  Indian  tribes,  the  action  of  the  law,  es- 
pecially when  the  constitution  was  made,  was  chiefly  within  a 
State.  The  power  of  Congress,  then,  whatever  it  may  be,  musf 
be  exercised  within  the  territorial  jurisdiction  of  the  several 
States.  The  sense  of  the  nation  on  this  subject  is  unequivocally 
manifested  by  the  provisions  made  in  the  laws  for  transport- 
ing goods  by  land  between  Baltimore  and  Providence,  between 
New  York  and  Philadelphia,  and  between  Philadelphia  and 
Baltimore. 

We  are  now  arrived  at  the  inquiry,  what  is  this  power? 

It  is  the  power  to  regulate;  that  is,  to  prescribe  the  rule  by 
which  commerce  is  to  be  governed.  This  power,  like  all  others 
vested  in  congress,  is  complete  in  itself,  may  be  exercised  to  its 
utmost  extent,  and  acknowledges  no  limitations  other  than  are 
prescribed  in  the  constitution.  These  are  expressed  in  plain 
terms,  and  do  not  affect  the  questions  which  arise  in  this  case, 
or  which  have  been  discussed  at  the  bar.  If,  as  has  always  been 


266  CASES  ON  CONSTITUTIONAL  LAW. 

understood,  the  sovereignty  of  congress,  though  limited  to  speci- 
fied objects,  is  plenary  as  to  those  objects,  the  power  over  com- 
merce with  foreign  nations,  and  among  the  several  States,  is 
vested  in  congress  as  absolutely  as  it  would  be  in  a  single  gov- 
ernment, having  in  its  constitution  the  same  restrictions  on  the 
exercise  of  the  power  as  are  found  in  the  constitution  of  the 
United  States.  The  wisdom  and  the  discretion  of  congress,  their 
identity  with  the  people,  and  the  influence  which  their  constitu- 
ents possess  at  elections,  are,  in  this,  as  in  many  other  instances, 
as  that,  for  example,  of  declaring  war,  the  sole  restraints  on 
which  they  have  relied,  to  secure  them  from  its  abuse.  They  are 
the  restraints  on  which  the  people  must  often  rely  solely,  in 
all  representative  governments. 

The  power  of  congress,  then,  comprehends  navigation  within 
the  limits  of  every  State  in  the  Union,  so  far  as  that  navigation 
may  be,  in  any  manner,  connected  with  "commerce  with  for- 
eign nations,  or  among  the  several  States,  or  with  the  Indian 
tribes."  It  may,  of  consequence,  pass  the  jurisdictional  line  of 
New  York,  and  act  upon  the  very  waters  to  which  the  prohibi- 
tion now  under  consideration  applies. 

But  it  has  been  urged  with  great  earnestness  that,  although 
the  power  of  congress  to  regulate  commerce  with  foreign  na- 
tions, and  among  the  several  States,  be  co-extensive  with  the 
subject  itself,  and  have  no  other  limits  than  are  prescribed  in  the 
constitution,  yet  the  States  may  severally  exercise  the  same 
power  within  their  respective  jurisdictions.  In  support  of  this 
argument,  it  is  said  that  they  possessed  it  as  an  inseparable 
attribute  of  sovereignty  before  the  formation  of  the  constitution, 
and  still  retain  it,  except  so"  far  as  they  have  surrendered  it  by 
that  instrument;  that  this  principle  results  from  the  nature  of 
the  government,  and  is  secured  by  the  tenth  amendment;  that 
an  affirmative  grant  of  power  is  not  exclusive,  unless  in  its  own 
nature  it  be  such  that  the  continued  exercise  of  it  by  the  former 
possessor  is  inconsistent  with  the  grant,  and  that  this  is  not 
of  that  description. 

The  appellant,  conceding  these  postulates,  except  the  last, 
contends  that  full  power  to  regulate  a  particular  subject  im- 
plies the  whole  power,  and  leaves  no  residuum;  that  a  grant 
of  the  whole  is  incompatible  with  the  existence  of  a  right  in 
another  to  any  part  of  it. 

Both  parties  have  appealed  to  the  constitution,  to  legislative 
acts,  and  judicial  decisions;  and  have  drawn  arguments  from 


GIBBONS  v.  OGDKN.  267 

all  these  sources  to  support  and  illustrate  the  propositions  they 
respectively  maintain. 

The  grant  of  the  power  to  lay  and  collect  taxes  is,  like  the 
power  to  regulate  commerce,  made  in  general  terms,  and  has 
never  been  understood  to  interfere  with  the  exercise  of  the  same 
power  by  the  States;  and  hence  has  been  drawn  an  argument 
which  has  been  applied  to  the  question  under  consideration.  But 
the  two  grants  are  not,  it  is  conceived,  similar  in  their  terms  or 
their  nature.  Although  many  of  the  powers  formerly  exercised 
by  the  States  are  transferred  to  the  government  of  the  Union, 
yet  the  State  governments  remain,  and  constitute  a  most  im- 
portant part  of  our  system.  The  power  of  taxation  is  indis- 
pensable to  their  existence,  and  is  a  power  which,  in  its  own 
nature,  is  capable  of  residing  in,  and  being  exercised  by,  differ- 
ent authorities  at  the  same  time.  We  are  accustomed  to  see  it 
placed,  for  different  purposes,  in  different  hands.  Taxation  is 
the  simple  operation  of  taking  small  portions  from  a  perpetually 
accumulating  mass,  susceptible  of  almost  infinite  division;  and, 
a  power  in  one  to  take  what  is  necessary  for  certain  purposes, 
is  not  in  its  nature  incompatible  with  a  power  in  another  to  take 
what  is  necessary  for  other  purposes.  Congress  is  authorized 
to  lay  and  collect  taxes,  etc.,  to  pay  the  debts,  and  provide  for 
the  common  defense  and  general  welfare  of  the  United  States. 
This  does  not  interfere  with  the  power  of  the  States  to  tax  for 
the  support  of  their  own  governments;  nor  is  the  exercise  of 
that  power  by  the  States  an  exercise  of  any  portion  of  the  power 
that  is  granted  to  the  United  States.  In  imposing  taxes  for  State 
purposes,  they  are  not  doing  what  congress  is  empowered  to 
do.  Congress  is  not  empowered  to  tax  for  those  purposes  which 
are  within  the  exclusive  province  of  the  States.  When,  then, 
each  government  exercises  the  power  of  taxation,  neither  is  exer- 
cising the  power  of  the  other.  But  when  a  State  proceeds  to 
regulate  commerce  with  foreign  nations,  or  among  the  several 
States,  it  is  exercising  the  very  power  that  is  granted  to  con- 
gress, and  is  doing  the  very  thing  which  congress  is  authorized 
to  do.  There  is  no  analogy,  then,  between  the  power  of  taxa- 
tion and  the  power  of  regulating  commerce. 

In  discussing  the  question  whether  this  power  is  still  in  the 
States,  in  the  case  under  consideration,  we  may  dismiss  from  it 
the  inquiry,  whether  it  is  surrendered  by  the  mere  grant  to  con 
gress,  or  is  retained  until  congress  shall  exercise  the  power.  We 
may  dismiss  that  inquiry  heeause  it  has  been  exercised,  and  the 
regulations  which  congress  deemed  it  proper  to  make  are  now 


268  CASES  ON  CONSTITUTIONAL  LAW. 

in  full  operation.  The  sole  question  is,  can  a  State  regulate  com- 
merce with  foreign  nations  and  among  the  States  while  congress 
is  regulating  it? 

The  counsel  for  the  respondent  answer  this  question  in  the 
affirmative,  and  rely  very  much  on  the  restrictions  in  the  10th 
section  as  supporting  their  opinion.  .  .  . 

These  restrictions,  then,  are  on  the  taxing  power,  not  on  that 
to  regulate  commerce ;  and  presuppose  the  existence  of  that  which 
they  restrain,  not  of  that  which  they  do  not  purport  to  restrain. 

But  the  inspection  laws  are  said  to  be  regulations  of  com- 
merce, and  are  certainly  recognized  in  the  constitution  as  being 
passed  in  the  exercise  of  a  power  remaining  with  the  States. 

That  inspection  laws  may  have  a  remote  and  considerable 
influence  on  commerce,  will  not  be  denied ;  but  that  a  power  to 
regulate  commerce  is  the  source  from  which  the  right  to  pass 
them  is  derived,  cannot  be  admitted.  The  object  of  inspection 
laws  is  to  improve  the  quality  of  articles  produced  by  the  labor 
of  a  country,  to  fit  them  for  exportation,  or  it  may  be  for  do- 
mestic use.  They  act  upon  the  subject  before  it  becomes  an 
article  of  foreign  commerce  or  of  commerce  among  the  States, 
and  prepare  it  for  that  purpose.  They  form  a  portion  of  that 
immense  mass  of  legislation  which  embraces  everything  within 
the  territory  of  a  State  not  surrendered  to  a  general  govern- 
ment; all  which  can  be  most  advantageously  exercised  by  the 
States  themselves.  Inspection  laws,  quarantine  laws,  health  laws 
of  every  description,  as  well  as  laws  for  regulating  the  internal 
commerce  of  a  State,  and  those  which  respect  turnpike  roads, 
ferries,  etc.,  are  component  parts  of  this  mass. 

No  direct  general  power  over  these  objects  is  granted  to  con- 
gress; and,  consequently,  they  remain  subject  to  State  legisla- 
tion. If  the  legislative  power  of  the  Union  can  reach  them,  it 
must  be  for  national  purposes;  it  must  be  where  the  power  is 
expressly  given  for  a  special  purpose,  or  is  clearly  incidental 
to  some  power  which  is  expressly  given.  It  is  obvious  that  the 
government  of  the  Union,  in  the  exercise  of  its  express  powers, — 
that,  for  example,  of  regulating  commerce  with  foreign  nations 
and  among  the  States, — may  use  means  that  may  also  be  em- 
ployed by  a  State  in  the  exercise  of  its  acknowledged  powers; 
that,  for  example,  of  regulating  commerce  within  the  State.  If 
congress  license  vessels  to  sail  from  one  port  to  another  in  the 
same  State,  the  act  is  supposed  to  be  necessarily  incidental  to 
the  power  expressly  granted  to  congress,  and  implies  no  claim 
of  a  direct  power  to  regulate  the  purely  internal  commerce  of 


GIBBON'S  v.  OGDEN.  269 

a  State,  or  to  act  directly  on  its  system  of  police.  So  if  a  State, 
in  passing  laws  on  subjects  acknowledged  to  be  within  its  con- 
trol, and  with  a  view  to  those  subjects,  shall  adopt  a  measure  of 
the  same  character  with  one  which  congress  may  adopt,  it  does 
not  derive  its  authority  from  the  particular  power  which  has 
been  granted,  but  from  some  other  which  remains  with  the  State, 
and  may  be  executed  by  the  same  means.  All  experience  shows 
that  the  same  measures,  or  measures  scarcely  distinguishable 
from  each  other,  may  flow  from  distinct  powers;  but  this  does 
not  prove  that  the  powers  themselves  are  identical.  Although 
the  means  used  in  their  execution  may  sometimes  approach  each 
other  so  nearly  as  to  be  confounded,  there  are  other  situations 
in  which  they  are  sufficiently  distinct  to  establish  their  indi- 
viduality. 

In  our  complex  system,  presenting  the  rare  and  difficult  scheme 
of  one  general  government  whose  action  extends  over  the  whole, 
but  which  possesses  only  certain  enumerated  powers;  and  of 
numerous  State  governments,  which  retain  and  exercise  all  pow- 
ers not  delegated  to  the  Union,  contests  respecting  power  must 
arise.  Were  it  even  otherwise,  the  measures  taken  by  the  re- 
spective governments  to  execute  their  acknowledged  powers 
would  often  be  of  the  same  description,  and  might  sometimes 
interfere.  This,  however,  does  not  prove  that  the  one  is  exer- 
cising, or  has  a  right  to  exercise,  the  powers  of  the  other. 

The  acts  of  congress,  passed  in  1796  and  1799,  1  Stats,  at 
Large,  474,  619,  empowering  and  directing  the  officers  of  the 
general  government  to  conform  to,  and  assist  in,  the  execution 
of  the  quarantine  and  health  laws  of  a  State,  proceed,  it  is  said, 
upon  the  idea  that  these  laws  are  constitutional.  It  is  undoubt- 
edly true  that  they  do  proceed  upon  that  idea ;  and  the  consti- 
tutionality of  such  laws  has  never,  so  far  as  we  are  informed, 
been  denied.  But  they  do  not  imply  an  acknowledgment  that 
a  State  may  rightfully  regulate  commerce  with  foreign  nations, 
or  among  the  States;  for  they  do  not  imply  that  such  laws  are 
an  exercise  of  that  power,  or  enacted  with  a  view  to  it  On  the 
contrary,  they  are  treated  as  quarantine  and  health  laws,  are 
so  denominated  in  the  acts  of  Congress,  and  are  considered  as 
flowing  from  the  acknowledged  power  of  a  State  to  provide  for 
the  health  of  its  citizens.  But  as  it  was  apparent  that  some  of 
the  provisions  made  for  this  purpose,  and  in  virtue  of  this 
power,  might  interfere  with,  and  be  affected  by,  the  laws  of  the 
United  States  made  for  the  regulation  of  commerce,  congress,  in 
that  spirit  of  harmony  and  conciliation  which  ought  always  to 


270  CASES  ON  CONSTITUTIONAL  LAW. 

characterize  the  conduct  of  governments  standing  in  the  rela- 
tion which  that  of  the  Union  and  those  of  the  States  bear  to 
each  other,  has  directed  its  officers  to  aid  in  the  execution  of 
these  laws;  and  has,  in  some  measure,  adapted  its  own  legisla- 
tion to  this  object  by  making  provisions  in  aid  of  those  of  the 
States.  But  in  making  these  provisions  the  opinion  is  unequivo- 
cally manifested  that  congress  may  control  the  State  laws, 
so  far  as  it  may  be  necessary  to  control  them,  for  the  regulation 
of  commerce. 

The  act  passed  in  1803,  3  Stats,  at  Large,  p.  529,  prohibiting 
the  importation  of  slaves  into  any  State  which  shall  itself  pro- 
hibit their  importation,  implies,  it  is  said,  an  admission  that  the 
States  possessed  the  power  to  exclude  or  admit  them ;  from  which 
it  is  inferred  that  they  possess  the  same  power  with  respect 
to  other  articles. 

If  this  inference  were  correct;  if  this  power  was  exercised, 
not  under  any  particular  clause  in  the  constitution,  but  in  vir- 
tue of  a  general  right  over  the  subject  of  commerce,  to  exist  as 
long  as  the  constitution  itself, — it  might  now  be  exercised.  Any 
State  might  now  import  African  slaves  into  its  own  territory. 
But  it  is  obvious  that  the  power  of  the  States  over  this  subject, 
previous  to  the  year  1808,  constitutes  an  exception  to  the  power 
of  congress  to  regulate  commerce,  and  the  exception  is  expressed 
in  such  words  as  to  manifest  clearly  the  intention  to  continue 
the  pre-existing  right  of  the  States  to  admit  or  exclude  for  a 
limited  period.  The  words  are,  "the  migration  or  importation 
of  such  persons  as  any  of  the  States  now  existing  shall  think 
proper  to  admit,  shall  not  be  prohibited  by  the  congress  prior 
to  the  year  1808."  The  whole  object  of  the  exception  is,  to  pre- 
serve the  power  to  those  States  which  might  be  disposed  to  exer- 
cise it;  and  its  language  seems  to  the  court  to  convey  this  idea 
unequivocally.  The  possession  of  this  particular  power,  then, 
during  the  time  limited  in  the  constitution,  cannot  be  admitted 
to  prove  the  possession  of  any  other  similar  power. 

It  has  been  said  that  the  act  of  August  7,  1789,  1  Stats,  at 
Large,  54,  acknowledges  a  concurrent  power  in  the  States  to 
regulate  the  conduct  of  pilots,  and  hence  is  inferred  an  admis- 
sion of  their  concurrent  right  with  congress  to  regulate  com- 
merce with  foreign  nations  and  amongst  the  States.  But  this 
inference  is  not,  we  think,  justified  by  the  fact.  Although  con- 
gress cannot  enable  a  State  to  legislate,  congress  may  adopt  the 
provisions  of  a  State  on  any  subject.  "When  the  government  of 
the  Union  was  brought  into  existence,  it  found  a  system  for  the 


GIBBONS  v.  OGDEN.  271 

regulation  of  its  pilots  in  full  force  in  every  State.  The  act 
which  has  been  mentioned  adopts  this  system,  and  gives  it  the 
same  validity  as  if  its  provisions  had  been  specially  made  by 
congress.  But  the  act,  it  may  be  said,  is  prospective  also,  and 
the  adoption  of  laws  to  be  made  in  future  presupposes  the  right 
in  the  maker  to  legislate  on  the  subject. 

The  act  unquestionably  manifests  an  intention  to  leave  this 
subject  entirely  to  the  States  until  congress  should  think  proper 
to  interpose ;  but  the  very  enactment  of  such  a  law  indicates  an 
opinion  that  it  was  necessary;  that  the  existing  system  would 
not  be  applicable  to  the  new  state  of  tilings  unless  expressly  ap- 
plied to  it  by  congress.  But  this  section  is  confined  to  pilots 
within  the  "bays,  inlets,  rivers,  harbors,  and  ports  of  the  United 
States,"  which  are,  of  course,  in  whole  or  in  part,  also  within 
the  limits  of  some  particular  State.  The  acknowledged  power  of 
a  State  to  regulate  its  police,  its  domestic  trade,  and  to  govern 
its  own  citizens,  may  enable  it  to  legislate  on  this  subject  to  a 
considerable  extent ;  and  the  adoption  of  its  system  by  congress, 
and  the  application  of  it  to  the  whole  subject  of  commerce,  does 
not  seem  to  the  court  to  imply  a  right  in  the  States  so  to  apply 
it  of  their  own  authority.  But  the  adoption  of  the  State  system 
being  temporary,  being  only  "until  further  legislative  provi- 
sion shall  be  made  by  congress,"  shows  conclusively  an  opinion 
that  congress  could  control  the  whole  subject,  and  might  adopt 
the  system  of  the  States,  or  provide  one  of  its  own. 

A  State,  it  is  said,  or  even  a  private  citizen,  may  construct 
lighthouses.  But  gentlemen  must  be  aware  that  if  this  proves  a 
power  in  a  State  to  regulate  commerce,  it  proves  that  the  same 
power  is  in  the  citizen.  States,  or  individuals  who  own  lands, 
may,  if  not  forbidden  by  law,  erect  on  those  lands  what  buildings 
they  please;  but  this  power  is  entirely  distinct  from  that  of 
regulating  commerce,  and  may,  we  presume,  be  restrained  if 
exercised  so  as  to  produce  a  public  mischief. 

These  acts  were  cited  at  the  bar  for  the  purpose  of  showing  an 
opinion  in  congress  that  the  States  possess,  concurrently  with 
the  legislature  of  the  Union,  the  power  to  regulate  commerce 
with  foreign  nations  and  among  the  States.  Upon  reviewing 
them,  we  think  they  do  not  establish  the  proposition  they  were 
intended  to  prove.  They  show  the  opinion  that  the  States  retain 
powers  enabling  them  to  pass  the  laws  to  which  allusion  has  been 
made,  not  that  those  laws  proceed  from  the  particular  power 
which  has  been  delegated  to  congress. 

It  has  been  contended  by  the  counsel  for  the  appellant  that, 


272  CASES  ON  CONSTITUTIONAL  LAW. 

as  the  word  to  ' '  regulate ' '  implies  in  its  nature  full  power  over 
the  thing  to  be  regulated,  it  excludes,  necessarily,  the  action  of 
all  others  that  would  perform  the  same  operation  on  the  same 
thing.  That  regulation  is  designed  for  the  entire  result,  applying 
to  those  parts  which  remain  as  they  were,  as  well  as  to  those 
which  are  altered.  It  produces  a  uniform  whole,  which  is  as 
much  disturbed  and  deranged  by  changing  what  the  regulating 
power  designs  to  leave  untouched,  as  that  on  which  it  has  oper- 
ated. 

There  is  great  force  in  this  argument,  and  the  court  is  not 
satisfied  that  it  has  been  refuted.  , 

Since,  however,  in  exercising  the  power  of  regulating  their 
own  purely  internal  affairs,  whether  of  trading  or  police,  the 
States  may  sometimes  enact  laws,  the  validity  of  which  depends 
on  their  interfering  with,  and  being  contrary  to,  an  act  of  con- 
gress passed  in  pursuance  of  the  constitution,  the  court  will 
enter  upon  the  inquiry  whether  the  laws  of  New  York,  as  ex- 
pounded by  the  highest  tribunal  of  that  State,  have,  in  their 
application  to  this  case,  come  into  collision  with  an  act  of  con- 
gress, and  deprived  a  citizen  of  a  right  to  which  that  act  entitles 
him.  Should  this  collision  exist,  it  will  be  immaterial  whether 
those  laws  were  passed  in  virtue  of  a  concurrent  power  ' '  to  regu- 
late commerce  with  foreign  nations  and  among  the  several 
States, ' '  or,  in  virtue  of  a  power  to  regulate  their  domestic  trade 
and  police.  In  one  case  and  the  other,  the  acts  of  New  York 
must  yield  to  the  law  of  congress,  and  the  decision  sustaining 
the  privilege  they  confer,  against  a  right  given  by  a  law  of  the 
Union,  must  be  erroneous.  . 

In  pursuing  this  inquiry  at  the  bar,  it  has  been  said  that  the 
constitution  does  not  confer  the  right  of  intercourse  between 
State  and  State.  That  right  derives  its  source  from  those  laws 
whose  authority  is  acknowledged  by  civilized  man  throughout 
the  world.  This  is  true.  The  constitution  found  it  an  existing 
right,  and  gave  to  congress  the  power  to  regulate  it.  In  the 
exercise  of  this  power,  congress  has  passed  "An  act  for  enroll- 
ing or  licensing  ships  or  vessels  to  be  employed  in  the  coasting 
trade  and  fisheries,  and  for  regulating  the  same."  The  counsel 
for  the  respondent  contend  that  this  act  does  not  give  the  right 
to  sail  from  port  to  port,  but  confines  itself  to  regulating  a  pre- 
existing right,  so  far  only  as  to  confer  certain  privileges  on 
enrolled  and  licensed  vessels  in  its  exercise. 

It  will  at  once  occur  that  when  a  legislature  attaches  certain 
privileges  and  exemptions  to  the  exercise  of  a  right  over  which 


GIBBONS  v.  OGDEX  273 

its  control  is  absolute,  the  law  must  imply  a  power  to  exercise 
the  right.  The  privileges  are  gone  if  the  right  itself  be  anni- 
hilated. It  would  be  contrary  to  all  reason  and  to  the  course  of 
human  affairs  to  say  that  a  State  is  unable  to  strip  a  vessel  of 
the  particular  privileges  attendant  on  the  exercise  of  a  right, 
and  yet  may  annul  the  right  itself;  that  the  State  of  New  York 
cannot  prevent  an  enrolled  and  licensed  vessel  proceeding  from 
Elizabethtown,  in  New  Jersey,  to  New  York,  from  enjoying,  in 
her  course  and  on  her  entrance  into  port,  all  the  privileges  con- 
ferred by  the  act  of  congress,  but  can  shut  her  up  in  her  own 
port,  and  prohibit  altogether  her  entering  the  waters  and  ports 
of  another  State.  To  the  court  it  seems  very  clear  that  the 
whole  act  on  the  subject  of  the  coasting  trade,  according  to 
those  principles  which  govern  the  construction  of  statutes,  im- 
plies unequivocally  an  authority  to  licensed  vessels  to  carry  on 
the  coasting  trade. 

But  we  will  proceed  briefly  to  notice  those  sections  which  bear 
more  directly  on  the  subject. 

The  first  section  declares  that  vessels  enrolled  by  virtue  of  a 
previous  law,  and  certain  other  vessels,  enrolled  as  described  in 
that  act,  and  having  a  license  in  force,  as  is  by  the  act  required, 
"and  no  others,  shall  be  deemed  ships  or  vessels  of  the  United 
States,  entitled  to  the  privileges  of  ships  or  vessels  employed  in 
the  coasting  trade." 

This  section  seems  to  the  court  to  contain  a  positive  enactment 
that  the  vessels  it  describes  shall  be  entitled  to  the  privileges  of 
ships  or  vessels  employed  in  the  coasting  trade.  These  privileges 
cannot  be  separated  from  the  trade,  and  cannot  be  enjoyed  un- 
less the  trade  may  be  prosecuted.  The  grant  of  the  privilege  is 
an  idle,  empty  form,  conveying  nothing,  unless  it  convey  the 
right  to  which  the  privilege  is  attached,  and  in  the  exercise  of 
which  its  whole  value  consists.  To  construe  these  words  other- 
wise than  as  entitling  the  ships  or  vessels  described  to  carry  on 
the  coasting  trade  would  be,  we  think,  to  disregard  the  apparent 
intent  of  the  act. 

The  fourth  section  directs  the  proper  officer  to  grant  to  a  vessel 
qualified  to  receive  it,  "a  license  for  carrying  on  the  coasting 
trade;"  and  prescribes  its  form.  After  reciting  the  compliance 
of  the  applicant  with  the  previous  requisites  of  the  law,  the  oper- 
ative words  of  the  instrument  are,  "license  is  hereby  granted  for 
the  said  steamboat  Bellona  to  be  employed  in  carrying  on  the 
coasting  trade  for  one  year  from  the  date  hereof,  and  no  longer." 

These  are  not  the  words  of  the  officer ;  they  are  the  words  of 

B.  C  L.-J* 


274  CASES  ON  CONSTITUTIONAL  LAW. 

the  legislature;  and  convey  as  explicitly  the  authority  the  act 
intended  to  give,  and  operate  as  effectually,  as  if  they  had  been 
inserted  in  any  other  part  of  the  act  than  in  the  license  itself. 

The  word  "license"  means  permission,  or  authority;  and  a 
license  to  do  any  particular  thing  is  a  permission  or  authority  to 
do  that  thing ;  and  if  granted  by  a  person  having  power  to  grant 
it,  transfers  to  the  grantee  the  right  to  do  whatever  it  purports 
to  authorize.  It  certainly  transfers  to  him  all  the  right  which 
the  grantor  can  transfer  to  do  what  is  within  the  terms  of  the 
license.  Would  the  validity  or  effect  of  such  an  instrument  be 
questioned  by  the  respondent  if  executed  by  persons  claiming 
regularly  under  the  laws  of  New  York  ? 

The  license  must  be  understood  to  be  what  it  purports  to  be, — 
a  legislative  authority  to  the  steamboat  Bellona  "to  be  employed 
in  carrying  on  the  coasting  trade  for  one  year  from  this  date. ' ' 

It  has  been  denied  that  these  words  authorize  a  voyage  from 
New  Jersey  to  New  York.  It  is  true  that  no  ports  are  specified ; 
but  it  is  equally  true  that  the  words  used  are  perfectly  intelligi- 
ble, and  do  confer  such  authority  as  unquestionably  as  if  the 
ports  had  been  mentioned.  The  coasting  trade  is  a  term  well 
understood.  The  law  has  defined  it;  and  all  know  its  meaning 
perfectly.  The  act  describes,  with  great  minuteness,  the  various 
operations  of  a  vessel  engaged  in  it ;  and  it  cannot,  we  think,  be 
doubted  that  a  voyage  from  New  Jersey  to  New  York  is  one  of 
those  operations. 

Notwithstanding  the  decided  language  of  the  license,  it  has  also 
been  maintained  that  it  gives  no  right  to  trade,  and  that  its  sole 
purpose  is  to  confer  the  American  character. 

The  answer  given  to  this  argument,  that  the  American  char- 
acter is  conferred  by  the  enrollment  and  not  by  the  license,  is, 
we  think,  founded  too  clearly  in  the  words  of  the  law  to  require 
the  support  of  any  additional  observations.  The  enrollment  of 
vessels  designed  for  the  coasting  trade  corresponds  precisely  with 
the  registration  of  vessels  designed  for  the  foreign  trade,  and 
requires  every  circumstance  which  can  constitute  the  American 
character.  The  license  can  be  granted  only  to  vessels  already 
enrolled,  if  they  be  of  the  burden  of  twenty  tons  and  upwards, 
and  requires  no  circumstance  essential  to  the  American  char- 
acter. The  object  of  the  license,  then,  cannot  be  to  ascertain  the 
character  of  the  vessel,  but  to  do  what  it  professes  to  do ;  that  is, 
to  give  permission  to  a  vessel  already  proved  by  her  enrollment 
to  be  American  to  carry  on  the  coasting  trade. 

But  if  the  license  be  a  permit  to  carry  on  the  coasting  trade, 


GIBBONS  v.  OGDKN.  275 

the  respondent  denies  that  these  boats  were  engaged  in  that 
trade,  or  that  the  decree  under  consideration  has  restrained  them 
from  prosecuting  it.  The  boats  of  the  appellant  were,  we  are 
told,  employed  in  the  transportation  of  passengers,  and  this  is 
no  part  of  that  commerce  which  congress  may  regulate. 

If,  as  our  whole  course  of  legislation  on  this  subject  shows,  the 
power  of  congress  has  been  universally  understood  in  America 
to  comprehend  navigation,  it  is  a  very  persuasive,  if  not  a  con- 
clusive, argument  to  prove  that  the  construction  is  correct ;  and 
if  it  be  correct,  no  clear  distinction  is  perceived  between  the 
power  to  regulate  vessels  employed  in  transporting  men  for  hire, 
and  property  for  hire.  The  subject  is  transferred  to  congress, 
and  no  exception  to  the  grant  can  be  admitted  which  is  not 
proved  by  the  words  or  the  nature  of  the  thing.  A  coasting 
vessel  employed  in  the  transportation  of  passengers  is  as  much  a 
portion  of  the  American  marine  as  one  employed  in  the  trans- 
portation of  a  cargo ;  and  no  reason  is  perceived  why  such  vessel 
should  be  withdrawn  from  the  regulating  power  of  that  govern- 
ment, which  has  been  thought  best  fitted  for  the  purpose  gen- 
erally. The  provisions  of  the  law  respecting  native  seamen  and 
respecting  ownership,  are  as  applicable  to  vessels  carrying  men 
as  to  vessels  carrying  manufactures;  and  no  reason  is  per- 
ceived why  the  power  over  the  subject  should  not  be  placed  in 
the  same  hands.  The  argument  urged  at  the  bar  rests  on  the 
foundation  that  the  power  of  congress  does  not  extend  to  navi- 
gation as  a  branch  of  commerce,  and  can  only  be  applied  to  that 
subject  incidentally  and  occasionally.  But  if  that  foundation  be 
removed,  we  must  show  some  plain,  intelligible  distinction,  sup- 
ported by  the  constitution,  or  by  reason,  for  discriminating 
between  the  power  of  congress  over  vessels  employed  in  navi- 
gating the  same  seas.  We  can  perceive  no  such  distinction. 

If  we  refer  to  the  constitution,  the  inference  to  be  drawn  from 
it  is  rather  against  the  distinction.  The  section  which  restrains 
congress  from  prohibiting  the  migration  or  importation  of  such 
persons  as  any  of  the  States  may  think  proper  to  admit,  until  the 
year  1808,  has  always  been  considered  as  an  exception  from  the 
power  to  regulate  commerce,  and  certainly  seems  to  class  migra- 
tion with  importation.  Migration  applies  as  appropriately  to 
voluntary,  aa  importation  docs  to  involuntary  arrivals;  and  so 
far  as  an  exception  from  a  power  proves  its  existence,  this  sec- 
tion proves  that  the  power  to  regulate  commerce  applies  equally 
to  the  regulation  of  vessels  employed  in  transporting  men  who 


276  CASES  ON  CONSTITUTIONAL  LAW. 

pass  from  place  to  place  voluntarily,  and  to  those  who  pass  invol- 
untarily. 

If  the  power  reside  in  congress,  as  a  portion  of  the  general 
grant  to  regulate  commerce,  then  acts  applying  that  power  to 
vessels  generally  must  be  construed  as  comprehending  all  vessels. 
If  none  appear  to  be  excluded  by  the  language  of  the  act,  none 
can  be  excluded  by  construction.  Vessels  have  always  been 
employed,  to  a  greater  or  less  extent,  in  the  transportation  of 
passengers,  and  have  never  been  supposed  to  be,  on  that  account, 
withdrawn  from  the  control  or  protection  of  congress.  Packets 
which  ply  along  the  coast,  as  well  as  those  which  make  voyages 
between  Europe  and  America,  consider  the  transportation  of 
passengers  as  an  important  part  of  their  business.  Yet  it  has 
never  been  suspected  that  the  general  laws  of  navigation  did 
not  apply  to  them. 

The  Duty  act,  sections  23  and  46,  1  Stats,  at  Large,  644,  661, 
contains  provisions  respecting  passengers,  and  shows  that  vessels 
which  transport  them  have  the  same  rights,  and  must  perform 
the  same  duties,  with  other  vessels.  They  are  governed  by  the 
general  laws  of  navigation. 

In  the  progress  of  things,  this  seems  to  have  grown  into  a 
particular  employment,  and  to  have  attracted  the  particular 
attention  of  government.  Congress  was  no  longer  satisfied  with 
comprehending  vessels  engaged  specially  in  this  business  within 
those  provisions  which  were  intended  for  vessels  generally ;  and 
on  the  2d  of  March,  1819,  passed  "An  act  regulating  passenger 
ships  and  vessels. ' '  3  Stats,  at  Large,  488.  This  wise  and  humane 
law  provides  for  the  safety  and  comfort  of  passengers,  and  for 
the  communication  of  everything  concerning  them  which  may 
interest  the  government,  to  the  department  of  State,  but  makes 
no  provision  concerning  the  entry  of  the  vessel,  or  her  conduct 
in  the  waters  of  the  United  States.  This,  we  think,  shows  con- 
clusively the  sense  of  congress  (if,  indeed,  any  evidence  to  that 
point  could  be  required),  that  the  pre-existing  regulations  com- 
prehended passenger  ships  among  others ;  and  in  prescribing  the 
same  duties,  the  legislature  must  have  considered  them  as  pos- 
sessing the  same  rights. 

If,  then,  it  were  even  true,  that  The  Bellona  and  The  Stoud- 
inger  were  employed  exclusively  in  the  conveyance  of  passengers 
between  New  York  and  New  Jersey,  it  would  not  follow  that  this 
occupation  did  not  constitute  a  part  of  the  coasting  trade  of  the 
United  States,  and  was  not  protected  by  the  license  annexed  to 
the  answer.  But  we  cannot  perceive  how  the  occupation  of  these 


GIBBONS  v.  OGDEN  277 

vessels  can  be  drawn  into  question  in  the  case  before  the  court 
The  laws  of  New  York,  which  grant  the  exclusive  privilege  set 
up  by  the  respondent,  take  no  notice  of  the  employment  of  ves- 
sels, and  relate  only  to  the  principle  by  which  they  are  propelK-d. 
Those  laws  do  not  inquire  whether  vessels  are  engaged  in  trans- 
porting men  or  merchandise,  but  whether  they  are  moved  by 
steam  or  wind.  If  by  the  former,  the  waters  of  New  York  are 
closed  against  them,  though  their  cargoes  be  dutiable  goods, 
which  the  laws  of  the  United  States  permit  them  to  enter  and 
deliver  in  New  York.  If  by  the  latter,  those  waters  are  free  to 
them,  though  they  should  carry  passengers  only.  In  conformity 
with  the  law,  is  the  bill  of  the  plaintiff  in  the  State  court.  The 
bill  does  not  complain  that  The  Bellona  and  The  Stoudinger 
carry  passengers,  but  that  they  are  moved  by  steam.  This  is 
tht-  injury  of  which  he  complains,  and  is  the  sole  injury  against 
the  continuance  of  which  he  asks  relief.  The  bill  does  not  even 
allege,  specially,  that  those  vessels  were  employed  in  the  trans- 
portation of  passengers,  but  says,  generally,  that  they  were  em- 
ployed "in  the  transportation  of  passengers,  or  otherwise."  The 
answer  avers  only  that  they  are  employed  in  the  coasting  trade, 
and  insists  on  the  right  to  carry  on  any  trade  authorized  by  the 
license.  No  testimony  is  taken,  and  the  writ  of  injunction  and 
decree  restrain  these  licensed  vessels,  not  from  carrying  passen- 
gers, but  from  being  moved  through  the  waters  of  New  York  by 
steam,  for  any  purpose  whatever. 

The  questions,  then,  whether  the  conveyance  of  passengers  be 
a  part  of  the  coasting  trade,  and  whether  a  vessel  can  be  pro- 
tected in  that  occupation  by  a  coasting  license,  are  not,  and 
cannot  be,  raised  in  this  case.  The  real  and  sole  question  seems 
to  be,  whether  a  steam  machine,  in  actual  use,  deprives  a  vessel 
of  the  privileges  conferred  by  a  license. 

In  considering  this  question,  the  first  idea  which  presents 
itself,  is  that  the  laws  of  congress  for  the  regulation  of  com- 
merce, do  not  look  to  the  principle  of  which  vessels  are  moved. 
That  subject  is  left  entirely  to  individual  discretion ;  and  in  that 
vast  and  complex  system  of  legislative  enactment  concerning  it, 
which  embraces  everything  which  the  legislature  thought  it 
necessary  to  notice,  there  is  not,  we  believe,  one  word  respecting 
the  peculiar  principle  by  which  vessels  are  propelled  through  the 
water,  except  what  may  be  found  in  a  single  act,  2  Stats,  at 
Largfe,  694,  granting  a  particular  privilege  to  steamboats.  With 
this  exception,  every  act,  either  prescribing  duties,  or  granting 
privileges,  applies  to  every  vessel,  whether  navigated  by  the 


278  CASES  ON  CONSTITUTIONAL  LAW. 

instrumentality  of  wind  or  fire,  of  sails  or  machinery.  The 
whole  weight  of  proof,  then,  is  thrown  upon  him  who  would 
introduce  a  distinction  to  which  the  words  of  the  law  give  no 
countenance. 

If  a  real  difference  could  be  admitted  to  exist  between  vessels 
carrying  passengers  and  others,  it  has  already  been  observed  that 
there  is  no  fact  in  this  case  which  can  bring  up  that  question. 
And,  if  the  occupation  of  steamboats  be  a  matter  of  such  general 
notoriety  that  the  court  may  be  presumed  to  know  it,  although 
not  specially  informed  by  the  record,  then  we  deny  that  the  trans- 
portation of  passengers  is  their  exclusive  occupation.  It  is  a 
matter  of  general  history,  that,  in  our  western  waters,  their 
principal  employment  is  the  transportation  of  merchandise ;  and 
all  know,  that  in  the  waters  of  the  Atlantic  they  are  frequently 
so  employed. 

But  all  inquiry  into  this  subject  seems  to  the  court  to  be  put 
completely  at  rest,  by  the  act  already  mentioned,  entitled,  "An 
act  for  the  enrolling  and  licensing  of  steamboats. ' ' 

This  act  authorizes  a  steamboat  employed,  or  intended  to  be 
employed,  only  in  a  river  or  bay  of  the  United  States,  owned 
wholly  or  in  part  by  an  alien,  resident  within  the  United  States, 
to  be  enrolled  and  licensed  as  if  the  same  belonged  to  a  citizen  of 
the  United  States. 

This  act  demonstrates  the  opinion  of  congress,  that  steamboats 
may  be  enrolled  and  licensed,  in  common  with  vessels  using  sails. 
They  are,  of  course,  entitled  to  the  same  privileges,  and  can  no 
more  be  restrained  from  navigating  waters,  and  entering  ports 
which  are  free  to  such  vessels,  than  if  they  were  wafted  on  their 
voyage  by  the  winds,  instead  of  being  propelled  by  the  agency 
of  fire.  The  one  element  may  be  as  legitimately  used  as  the 
other,  for  every  commercial  purpose  authorized  by  the  laws  of 
the  Union ;  and  the  act  of  a  State  inhibiting  the  use  of  either  to 
any  vessel  having  a  license  under  the  act  of  congress,  comes,  we 
think,  in  direct  collision  with  that  act. 

As  this  decides  the  cause,  it  is  unnecessary  to  enter  in  an  exam- 
ination of  that  part  of  the  constitution  which  empowers  congress 
to  promote  the  progress  of  science  and  the  useful  arts.  . 

[MR.  JUSTICE  JOHNSON  delivered  a  concurring  opinion.] 

NOTE. — In  the  exercise  of  its  power  to  regulate  interstate  and  foreign 
commerce,  Congress  has  enacted  several  statutes  which  not  only  restrain  the 
States,  but  act  directly  upon  individuals  and  corporations  engaged  in  such 


GIBBONS  v.  OGDK.V  279 

commerce  and  impose  restrictions  or  create  affirmative  duties.    Among  the 
most  important  are  the  following: 

THK  INTERSTATE  COMMERCE  ACT,  first  enacted  in  1887,  and  many  times 
amended.  The  predominant  purpose  of  its  enactment  was  to  prevent  unrea 
sonable  and  discriminatory  rates  (Texaa  A  Pacific  By.  v.  Interstate  Com 
merce  Commission  [1896],  162  U.  8.  197,  211),  but  the  Interstate  Commerce 
Commission,  the  organ  created  for  the  administration  of  the  Act,  was  not 
empowered  to  fix  rates  (Cincinnati,  New  Orleans  t  Texas  Ry.  v.  Interstate 
Commerce  Commission  [1896],  162  U.  8.  184).  By  the  Hepburn  Act  of  1006 
this  power  was  conferred  upon  the  Commission,  transportation  companies 
were  forbidden  to  transport  their  own  commodities  (United  States  v.  Dela- 
ware ft  Hudson  Ry.  [1909],  213  U.  8.  366),  the  giving  of  free  passes  was 
regulated,  pipe  lines,  express  companies  and  deeping  car  companies  were 
brought  within  the  provisions  of  the  Act,  and  the  supervisory  powers  of  the 
Commission  were  much  enlarged.  In  1910  the  jurisdiction  of  the  Com- 
mission was  extended  over  telegraph  and  telephone  companies,  and  it  was 
empowered  to  suspend  advances  in  rates.  By  the  Panama  Act  of  1912  the 
power  of  the  Commission  was  extended  to  transportation  by  both  water  and 
rail,  but  not  over  commerce  that  moved  wholly  by  water.  In  1913  the  Com- 
mission was  directed  to  undertake  a  physical  valuation  of  all  the  property 
owned  by  every  carrier  subject  to  its  jurisdiction. 

THE  ANTI-TRUST  ACT  of  1890  provided  that  "every  contract,  combina- 
tion in  the  form  of  trust,  or  otherwise,  or  conspiracy  in  restraint  of  trade 
or  commerce  among  the  several  States,  or  with  foreign  nations,  is  hereby 
declared  to  be  illegal."  This  act  has  been  applied  to  combinations  among 
transportation  companies  (United  States  v.  Trans-Missouri  Freight  Associa- 
tion [1897],  166  U.  8.  290) ;  to  hoMing  companies  which  interfere  with  tho 
freedom  of  interstate  commerce  (United  States  v.  Northern  Securities  Co. 
[1904],  193  U.  S.  197)  ;  to  combinations  of  manufacturers  for  the  purpose 
of  controlling  the  course  of  trade  (Addystone  Pipe  &  Steel  Co.  v.  United 
Statea  [1899],  175  U.  8.  211;  Montague  v.  Lowry  [1904],  193  U.  8.  38); 
and  to  labor  unions  conducting  a  boycott  which  interfered  with  interstate 
commerce  (Loewe  v.  Lawler  [1908],  208  U.  8.  274). 

THK  EMPLOYERS  '  LIABILITY  ACT  of  1906  considerably  modified  the  fellow- 
servant  rule  of  the  common  law  as  applied  to  the  employees  of  carriers.  As 
the  act  applied  to  persons  in  both  intrastate  and  interstate  commerce,  it  was 
declared  unconstitutional  in  respect  to  the  former  in  Employers'  Liability 
Cases  (1908),  207  U.  8.  463,  but  was  held  valid  as  to  carriers  in  the  Dis- 
trict of  Columbia  and  the  Territories  in  El  Paso  &  Northeastern  By.  v. 
Gutierrez  (1909),  215  U.  8.  87.  In  order  to  meet  the  objections  raised  bj 
the  Supreme  Court,  Congress,  in  1908,  passed  a  second  act  which  is  con- 
fined to  persons  actually  engaged  in  interstate  commerce.  This  was  sus- 
tained in  Second  Employers'  Liability  Cases  (1912),  223  U.  8.  1. 

THE  FEDERAL  SATETY  APPLIANCE  ACTS,  enacted  in  1893  and  the  years  fol- 
lowing, requiring  interstate  trains  to  be  equipped  with  certain  safety  de- 
vices, were  upheld  in  St  Louis  ft  Iron  Mountain  By.  v.  Taylor  (1908),  210 
U.  8.  281. 

TH*  HOURS  or  SERVICE  ACT  of  1907,  restricting  the  hours  of  labor  of 
railway  employees  operating  trains  moving  in  interstate  commerce,  was  up- 
held in  Baltimore  &  Ohio  By.  v.  Interstate  Commerce  Commission  (1911), 
821  U.  8.  612. 


280  CASES  ON  CONSTITUTIONAL  LAW. 

THE  FEDERAL  TRADE  COMMISSION  ACT  of  1914  creates  the  Federal  Trade 
Commission.  The  gist  of  the  act  is  contained  in  the  provision  ' '  that  unf ai1, 
methods  of  competition  in  commerce  are  hereby  declared  unlawful."  The 
meaning  of  this  phrase  yet  remains  to  be  determined. 

THE  CLAYTON  ANTI-TRUST  ACT  of  1914  undertakes  to  prevent  all  persons 
engaged  in  interstate  commerce  from  discriminating  in  prices  between  dif- 
ferent purchasers  of  commodities  or  to  accord  preferential  treatment  tc 
one  person  over  another.  Corporations  engaged  in  interstate  commerce  ate 
forbidden  to  purchase  the  stock  of  another  corporation  when  such  purchase 
would  substantially  diminish  competition,  and  the. right  of  individuals  to  act 
as  director  in  more  than  one  corporation  is  restricted.  The  relation  between 
carriers  and  the  corporations  from  which  they  obtain  service  or  supplies  is 
also  regulated. 


BROWN  ET  AL.  v.  THE  STATE  OF  MARYLAND. 

SUPREME  COURT  OP  THE  UNITED  STATES.     1827. 
12  Wheaton,  419;  6  Lawyers'  Ed.  678. 

ERROR  to  the  Court  of  Appeals  of  Maryland. 

MARSHALL.,  C.  J.,  delivered  the  opinion  of  the  court. 

This  is  a  writ  of  error  to  a  judgment  rendered  in  the  court  of 
appeals  of  Maryland,  affirming  a  judgment  of  the  city  court 
of  Baltimore,  on  an  indictment  found  in  that  court  against  the 
plaintiffs  in  error,  for  violating  an  act  of  the  legislature  of 
Maryland.  The  indictment  was  founded  on  the  2d  section 
of  that  act,  which  is  in  these  words :  ' '  And  be  it  enacted  that  all 
importers  of  foreign  articles  or  commodities,  of  dry  goods,  wares, 
or  merchandise,  by  bale  or  package,  or  of  wine,  rum,  brandy, 
whiskey,  and  other  distilled  spirituous  liquors,  &c.,  and  other 
persons  selling  the  same  by  wholesale,  bale  or  package,  hogshead, 
barrel,  or  tierce,  shall,  before  they  are  authorized  to  sell,  take  out 
a  license,  as  by  the  original  act  is  directed,  for  which  they  shall 
pay  fifty  dollars;  and  in  case  of  neglect  or  refusal  to  take  out 
such  license,  shall  be  subject  to  the  same  penalties  and  forfeitures 
as  are  prescribed  by  the  original  act  to  which  this  is  a  supple- 
ment. ' '  The  indictment  charges  the  plaintiffs  in  error  with  hav- 
ing imported  and  sold  one  package  of  foreign  dry  goods  without 
having  license  to  do  so.  A  judgment  was  rendered  against  them, 
on  demurrer,  for  the  penalty  which  the  ael  prescribes  for  the 
offense ;  and  that  judgment  is  now  before  this  court. 

This  cause  depends  entirely  on  the  question  whether  the  legis- 
lature of  a  State  can  constitutionally  require  the  importer  of 


BROWN  v.  STATE  OF  MARYLAND.  281 

foreign  articles  to  take  out  a  license  from  the  State,  before  he 
shall  be  permitted  to  sell  a  bale  or  package  so  imported. 

It  has  been  truly  said,  that  the  presumption  is  in  favor  of 
every  legislative  act,  and  that  the  whole  burden  of  proof  lie»  on 
him  who  denies  its  constitutionality.  The  plaintiffs  in  error  take 
the  burden  upon  themselves,  and  insist  that  the  act  under  con- 
sideration is  repugnant  to  two  provisions  in  the  constitution  of 
the  United  States. 

1.  To  that  which  declares  that  "no  State  shall,  without  the 
consent  of  Congress,  lay  any  imposts,  or  duties  on  imports  or 
exports,  except  what  may  be  absolutely  necessary  for  executing 
its  inspection  laws." 

2.  To  that  which  declares  that  Congress  shall  have  power  "to 
regulate  commerce  with  foreign  nations,  and  among  the  several 
States,  and  with  the  Indian  tribes." 

1.  The  first  inquiry  is  into  the  extent  of  the  prohibition  upon 
States  "to  lay  any  imposts  or  duties  on  imports  or  exports." 
The  counsel  for  the  State  of  Maryland  would  confine  this  pro- 
hibition to  laws  imposing  duties  on  the  act  of  importation  or 
exportation.  The  counsel  for  the  plaintiffs  in  error  give  them  a 
much  wider  scope. 

In  performing  the  delicate  and  important  duty  of  construing 
clauses  in  the  constitution  of  our  country,  which  involve  con- 
flicting powers  of  the  government  of  the  Union,  and  of  the 
respective  States,  it  is  proper  to  take  a  view  of  the  literal  mean- 
ing of  the  words  to  be  expounded,  of  their  connection  with  other 
words,  and  of  the  general  objects  to  be  accomplished  by  the 
prohibitory  clause,  or  by  the  grant  of  power. 

What,  then,  is  the  meaning  of  the  words,  "imposts,  or  duties 
on  imports  or  exports!" 

An  impost,  or  duty  on  imports,  is  a  custom  or  a  tax  levied  on 
articles  brought  into  a  country,  and  is  most  usually  secured  be- 
fore the  importer  is  allowed  to  exerdse  his  rights  of  ownership 
over  them,  because  evasions  of  the  law  can  be  prevented  more 
certainly  by  executing  it  while  the  articles  are  in  its  custody. 
It  would  not,  however,  be  less  an  impost  or  duty  on  the  art  i 
if  it  were  to  be  levied  on  them  after  they  were  landed.  The 
policy  and  consequent  practice  of  levying  or  securing  the  duty 
before,  or  on  entering  the  port,  does  not  limit  the  power  to  that 
state  of  things, 'nor,  consequently,  the  prohibition,  unless  the  true 
meaning  of  the  clause  so  confines  it  What,  then,  are  "imports"! 
The  lexicons  inform  us  they  are  "things  imported."  If  we 
appeal  to  usage  for  the  meaning  of  the  word,  we  shall  receive 


282  CASES  ON  CONSTITUTIONAL  LAW. 

the  same  answer.  They  are  the  articles  themselves  which  are 
brought  into  the  country.  "A  duty  on  imports,"  then,  is  not 
merely  a  duty  on  the  act  of  importation,  but  is  a  duty  on  the 
thing  imported.  It  is  not,  taken  in  its  literal  sense,  confined  to 
a  duty  levied  while  the  article  is  entering  the  country,  but  ex- 
tends to  a  duty  levied  after  it  has  entered  the  country.  The 
succeeding  words  of  the  sentence  which  limit  the  prohibition, 
show  the  extent  in  which  it  was  understood.  The  limitation  is, 
"except  what  may  be  absolutely  necessary  for  executing  its 
inspection  laws."  Now,  the  inspection  laws,  so  far  as  they  act 
upon  articles  for  exportation,  are  generally  executed  on  land, 
before  the  article  is  put  on  board  the  vessel;  so  far  as  they  act 
upon  importations  they  are  generally  executed  upon  articles 
which  are  landed.  The  tax  or  duty  of  inspection,  then,  is  a  tax 
which  is  frequently,  if  not  always,  paid  for  service  performed 
on  land,  while  the  article  is  in  the  bosom  of  the  country.  Yet 
this  tax  is  an  exception  to  the  prohibition  on  the  States  to  lay 
duties  on  imports  or  exports.  The  exception  was  made  because 
the  tax  would  otherwise  have  been  within  the  prohibition. 

If  it  be  a  rule  of  interpretation  to  which  all  assent,  that  the 
exception  of  a  particular  thing  from  general  words,  proves  that, 
in  the  opinion  of  the  lawgiver,  the  thing  excepted  would  be 
within  the  general  clause  had  the  exception  not  been  made,  we 
know  no  reason  why  this  general  rule  should  not  be  as  applicable 
to  the  constitution  as  to  other  instruments.  If  it  be  applicable, 
then  this  exception  in  favor  of  duties  for  the  support  of  inspec- 
tion laws,  goes  far  in  proving  that  the  framers  of  the  constitution 
classed  taxes  of  a  similar  character  with  those  imposed  for  the 
purposes  of  inspection,  with  duties  on  imports  and  exports,  and 
supposed  them  to  be  prohibited. 

If  we  quit  this  narrow  view  of  the  subject,  and  passing  from 
the  literal  interpretation  of  the  words,  look  to  the  objects  of  the 
prohibition,  we  find  no  reason  for  withdrawing  the  act  under 
consideration  from  its  operation. 

From  the  vast  inequality  between  the  different  States  of  the 
confederacy,  as  to  commercial  advantages,  few  subjects  were 
viewed  with  deeper  interest,  or  excited  more  irritation,  than  the 
manner  in  which  the  several  States  exercised,  or  seemed  disposed 
to  exercise,  the  power  of  laying  duties  on  imports.  From  motives 
which  were  deemed  sufficient  by  the  statesmen  of  that  day,  the 
general  power  of  taxation,  indispensably  necessary  as  it  was,  and 
jealous  as  the  States  were  of  any  encroachment  upon  it,  was  so 
far  abridged  as  to  forbid  them  to  touch  imports  or  exports,  with 


BROWN  v.  STATE  OF  MARYLAND.  283 

the  single  exception  which  lias  been  noticed.  Why  are  they 
restrained  from  imposing  these  duties  f  Plainly,  because,  in  the 
general  opinion,  the  interest  of  all  would  be  heist  promoted  by 
placing  that  whole  subject  under  the  control  of  congress. 
Whether  the  prohibition  to  "lay  imposts,  or  duties  on  imports  or 
exports,"  proceeded  from  an  apprehension  that  the  power  might 
be  so  exercised  as  to  disturb  that  equality  among  the  States 
which  was  generally  advantageous,  or  that  harmony  between 
them  which  it  was  desirable  to  preserve,  or  to  maintain  unim- 
paired our  commercial  connections  with  foreign  nations,  or  to 
confer  this  source  of  revenue  on  the  government  of  the  Union, 
or  whatever  other  motive  might  have  induced  the  prohibition, 
it  is  plain  that  the  object  would  be  as  completely  defeated  by  a 
power  to  tax  the  article  in  the  hands  of  the  importer  the  instant 
it  was  landed,  as  by  a  power  to  tax  it  while  entering  the  port. 
There  is  no  difference,  in  effect,  between  a  power  to  prohibit  the 
sale  of  an  article  and  a  power  to  prohibit  its  introduction  into  the 
country.  The  one  would  be  a  necessary  consequence  of  the  other. 
No  goods  would  be  imported  if  none  could  be  sold.  No  object 
of  any  description  can  be  accomplished  by  laying  a  duty  on  im- 
portation, which  may  not  be  accomplished  with  equal  certainty 
by  laying  a  duty  on  the  thing  imported  in  the  hands  of  the 
importer.  It  is  obvious  that  the  same  power  which  imposes  a 
light  duty  can  impose  a  very  heavy  one,  one  which  amounts  to  a 
prohibition.  Questions  of  power  do  not  depend  on  the  degree 
to  which  it  may  be  exercised.  If  it  may  be  exercised  at  all,  it 
must  be  exercised  at  the  will  of  those  in  whose  hands  it  is  placed. 
If  the  tax  may  be  levied  in  this  form  by  a  State,  it  may  be 
levied  to  an  extent  which  will  defeat  the  revenue  by  impost,  so 
far  as  it  is  drawn  from  importations  into  the  particular  State. 
We  are  told  that  such  wild  and  irrational  abuse  of  power  is  not 
to  be  apprehended,  and  is  not  to  be  taken  into  view  when  dis- 
cussing its  existence.  All  power  may  be  abused ;  and  if  the  fear 
of  its  abuse  is  to  constitute  an  argument  against  its  existence,  it 
might  be  urged  against  the  existence  of  that  which  is  universally 
acknowledged,  and  which  is  indispensable  to  the  general  safety. 
The  States  will  never  be  so  mad  as  to  destroy  their  own  com- 
merce, or  even  to  lessen  it. 

We  do  not  dissent  from  these  general  propositions.  We  do 
not  suppose  any  State  would  act  so  unwisely.  But  we  do  not 
place  the  question  on  that  ground. 

These  arguments  apply  with  precisely  the  same  force  against 
the  whole  prohibition.  It  might,  with  the  same  reason,  be  said 


284  CASES  ON  CONSTITUTIONAL  LAW. 

that  no  State  would  be  so  blind  to  its  own  interests  as  to  lay 
duties  on  importation  which  would  either  prohibit  or  diminish 
its  trade.  Yet  the  f  ramers  of  our  constitution  have  thought  this 
a  power  which  no  State  ought  to  exercise.  Conceding,  to  the  full 
extent  which  is  required,  that  every  State  would,  in  its  legisla- 
tion on  this  subject,  provide  judiciously  for  its  own  interests,  it 
cannot  be  conceded  that  each  would  respect  the  interests  of 
others.  A  duty  on  imports  is  a  tax  on  the  article  which  is  paid 
by  the  consumer.  The  great  importing  States  would  thus  levy 
a  tax  on  the  non-importing  States,  which  would  not  be  less  a  tax 
because  their  interest  would  afford  ample  security  against  its 
ever  being  so  heavy  as  to  expel  commerce  from  their  ports.  This 
would  necessarily  produce  countervailing  measures  on  the  part 
of  those  States  whose  situation  was  less  favorable  to  importation. 
For  this,  among  other  reasons,  the  whole  power  of  laying  duties 
on  imports  was  with  a  single  and  slight  exception,  taken  from 
the  States.  "When  we  are  inquiring  whether  a  particular  act  is 
within  this  prohibition,  the  question  is  not,  whether  a  State 
may  so  legislate  as  to  hurt  itself,  but  whether  the  act  is  within 
the  words  and  mischief  of  the  prohibitory  clause.  It  has  already 
been  shown,  that  a  tax  on  the  article  in  the  hands  of  the  im- 
porter, is  within  its  words;  and  we  think  it  too  clear  for  con- 
troversy, that  the  same  tax  is  within  its  mischief.  We  think  it 
unquestionable,  that  such  a  tax  has  precisely  the  same  tendency, 
to  enhance  the  price  of  the  article,  as  if  imposed  upon  it  while 
entering  the  port. 

The  counsel  for  the  State  of  Maryland,  insist,  with  great  rea- 
son, that  if  the  words  of  the  prohibition  be  taken  in  their  utmost 
latitude,  they  will  abridge  the  power  of  taxation,  which  all  admit 
to  be  essential  to  the  States,  to  an  extent  which  has  never  yet 
been  suspected,  and  will  deprive  them  of  resources  which  are 
necessary  to  supply  revenue,  and  which  they  have  heretofore 
been  admitted  to  possess.  These  words  must,  therefore,  be  con- 
strued with  some  limitations;  and,  if  this  be  admitted,  they  in- 
sist that  entering  the  country  is  the  point  of  time  when  the 
prohibition  ceases,  and  the  power  of  the  State  to  tax  .commences. 

It  may  be  conceded,  that  the  words  of  the  prohibition  ought 
not  to  be  pressed  to  their  utmost  extent;  that  in  our  complex 
system,  the  object  of  the  powers  conferred  on  the  government 
of  the  Union,  and  the  nature  of  the  often  conflicting  powers 
which  remain  in  the  States,  must  always  be  taken  into  view,  and 
may  aid  in  expounding  the  words  of  any  particular  clause.  But, 
while  we  admit  that  sound  principles  of  construction  ought  to 


BROWN  v.  STATE  OF  MARYLAND.  285 

restrain  all  courts  from  carrying  the  words  of  the  prohibition 
beyond  the  object  the  constitution  is  intended  to  secure;  that 
there  must  be  a  point  of  time  when  the  prohibition  ceases,  and 
the  power  of  the  State  to  tax  commences ;  we  cannot  admit  that 
this  point  of  time  is  the  instant  that  the  article  enters  the  coun- 
try. It  is,  we  think,  obvious  that  this  construction  would  defeat 
the  prohibition. 

The  constitutional  prohibition  on  the  States  to  lay  a  duty  on 
imports,  a  prohibition  which  a  vast  majority  of  them  must  feel 
an  interest  in  preserving,  may  certainly  come  in  conflict  with 
their  acknowledged  power  to  tax  persons  and  property  within 
their  territory.  The  power,  and  the  restriction  on  it,  though 
quite  distinguishable  when  they  do  not  approach  each  other, 
may  yet,  like  the  intervening  colors  between  white  and  black, 
approach  so  nearly  as  to  perplex  the  understanding,  as  colors 
perplex  the  vision  in  marking  the  distinction  between  them.  Yet 
the  distinction  exists,  and  must  be  marked  as  the  cases  arise. 
Till  they  do  arise,  it  might  be  premature  to  state  any  rule  as 
being  universal  in  its  application.  It  is  sufficient  for  the  ftm 
ent  to  say,  generally,  that  when  the  importer  has  so  acted  upon 
the  thing  imported,  that  it  has  become  incorporated  and  mixed 
up  with  the  mass  of  property  in  the  country,  it  has,  perhaps, 
lost  its  distinctive  character  as  an  import,  and  has  become  sub- 
ject to  the  taxing  power  of  the  State;  but  while  remaining  the 
property  of  the  importer,  in  his  warehouse,  in  the  original  form 
or  package  in  which  it  was  imported,  a  tax  upon  it  is  too  plainly 
a  duty  on  imports  to  escape  the  prohibition  in  the  constitution. 

The  counsel  for  the  plaintiffs  in  error  contend  that  the  im- 
porter purchases,  by  payment  of  the  duty  to  the  United  States, 
a  right  to  dispose  of  his  merchandise,  as  well  as  to  bring  it  into 
the  country ;  and  certainly  the  argument  is  supported  by  strong 
reason,  as  well  as  by  the  practice  of  nations,  including  our  own. 
The  object  of  importation  is  sale;  it  constitutes  the  motive  for 
paying  the  duties ;  and  if  the  United  States  possesses  the  power 
of  conferring  the  right  to  sell,  as  the  consideration  for  which 
the  duty  is  paid,  every  principle  of  fair  dealing  requires  that 
they  should  be  understood  to  confer  it.  The  practice  of  the  most 
commercial  nations  conforms  to  this  idea.  Duties,  according  to 
that  practice,  are  charged  on  those  articles  only  which  are  in- 
tended for  sale  or  consumption  in  the  country.  Thus,  sea  stores, 
goods  imported  and  re-exported  in  the  same  vessel,  goods  landed 
and  carried  over  land  for  the  purpose  of  being  re-exported  from 
some  other  port,  goods  forced  in  by  stress  of  weather,  and  land- 


286  CASES  ON  CONSTITUTIONAL  LAW. 

ed,  but  not  for  sale,  are  exempted  from  the  payment  of  duties. 
The  whole  course  of  legislation  on  the  subject  shows  that,  in  the 
opinion  of  the  legislature,  the  right  to  sell  is  connected  with  the 
payment  of  duties. 

The  counsel  for  the  defendant  in  error  have  endeavored  to 
illustrate  their  proposition,  that  the  constitutional  prohibition 
ceases  the  instant  the  goods  enter  the  country,  by  an  array  of 
the  consequences  which  they  suppose  must  follow  the  denial  of 
it.  If  the  importer  acquires  the  right  to  sell  by  the  payment  of 
duties,  he  may,  they  say,  exert  that  right  when,  where,  and  as 
he  pleases,  and  the  State  cannot  regulate  it.  He  may  sell  by 
retail,  at  auction,  or  as  an  itinerant  peddler.  He  may  introduce 
articles,  as  gunpowder,  which  endanger  a  city,  into  the  midst 
of  its  population ;  he  may  introduce  articles  which  endanger  the 
public  health,  and  the  power  of  self-preservation  is  denied.  An 
importer  may  bring  in  goods,  as  plate,  for  his  own  use,  and  thus 
retain  much  valuable  property  exempt  from  taxation. 

These  objections  to  the  principle,  if  well  founded,  would  cer- 
tainly be  entitled  to  serious  consideration.  But  we  think  they 
will  be  found,  on  examination,  not  to  belong  necessarily  to  the 
principle,  and,  consequently,  not  to  prove  that  it  may  not  be  re- 
sorted to  with  safety  as  a  criterion  by  which  to  measure  the 
extent  of  the  prohibition. 

This  indictment  is  against  the  importer,  for  selling  a  package 
of  dry  goods  in  the  form  in  which  it  was  imported,  without  a 
license.  This  state  of  things  is  changed  if  he  sells  them,  or  other- 
wise mixes  them  with  the  general  property  of  the  State,  by  break- 
ing up  his  packages,  and  traveling  with  them  as  an  itinerant 
peddler.  In  the  first  case,  the  tax  intercepts  the  import,  as 
an  import,  in  its  way  to  become  incorporated  with  the  general 
mass  of  property,  and  denies  it  the  privilege  of  becoming  so  in- 
corporated until  it  shall  have  contributed  to  the  revenue  of  the 
State.  It  denies  to  the  importer  the  right  of  using  the  privilege 
which  he  has  purchased  from  the  United  States,  until  he  shall 
have  also  purchased  it  from  the  State.  In  the  last  cases,  the 
tax  finds  the  article  already  incorporated  with  the  mass  of  prop- 
erty by  the  act  of  the  importer.  He  has  used  the  privilege  he 
has  purchased,  and  has  himself  mixed  them  up  with  the  com- 
mon mass,  and  the  law  may  treat  them  as  it  finds  them.  The 
same  observations  apply  to  plate,  or  other  furniture  used  by  the 
importer. 

So,  if  he  sells  by  auction.  Auctioneers  are  persons  licensed  by 
the  State,  and  if  the  importer  chooses  to  employ  them,  he  can  as 


BROWN  v.  STATE  OF  MARYLAND.  287 

little  object  to  paying  for  this  service,  as  for  any  other  for  which 
he  may  apply  to  an  officer  of  the  State.  The  right  of  sale  may 
very  well  be  annexed  to  importation,  without  annexing  to  it,  also, 
the  privilege  of  using  the  officers  licensed  by  the  State  to  make 
sales  in  a  peculiar  way. 

The  power  to  direct  the  removal  of  gunpowder  is  a  branch  of 
the  police  power,  which  unquestionably  remains,  and  ought  to 
remain,  with  the  States.  If  the  possessor  stores  it  himself  out 
of  town,  the  removal  cannot  be  a  duty  on  imports,  because  it  con- 
tributes nothing  to  the  revenue.  If  he  prefers  placing  it  in  a 
public  magazine,  it  is  because  he  stores  it  there,  in  his  own  opin- 
ion, more  advantageously  than  elsewhere.  We  are  not  sure  that 
this  may  not  be  classed  among  inspection  laws.  The  removal  or 
destruction  of  infectious  or  unsound  articles  is,  undoubtedly,  an 
exercise  of  that  power,  and  forms  an  express  exception  to  the  pro- 
hibition we  are  considering.  Indeed,  the  laws  of  the  United 
States  expressly  sanction  the  health  laws  of  a  State. 

The  principle,  then,  for  which  the  plaintiffs  in  error  con- 
tend, that  the  importer  acquires  a  right,  not  only  to  bring  the 
articles  into  the  country,  but  to  mix  them  with  the  common  mass 
of  property  does  not  interfere  with  the  necessary  power  of  taxa- 
tion which  is  acknowledged  to  reside  in  the  States,  to  that  dan- 
gerous extent  which  the  counsel  for  the  defendants  in  error  seem 
to  apprehend.  It  carries  the  prohibition  in  the  constitution  no 
further  than  to  prevent  the  States  from  doing  that  which  it  was 
the  great  object  of  the  constitution  to  prevent. 

But  if  it  should  be  proved,  that  a  duty  on  the  article  itself 
would  be  repugnant  to  the  constitution,  it  is  still  argued  that 
this  is  not  a  tax  upon  the  article,  but  on  the  person.  The  State, 
it  is  said,  may  tax  occupations,  and  this  is  nothing  more. 

It  is  impossible  to  conceal  from  ourselves  that  this  is  varying 
the  form  without  varying  the  substance.  It  is  treating  a  pro- 
hibition which  is  general,  as  if  it  were  confined  to  a  particular 
mode  of  doing  the  forbidden  thing.  All  must  perceive  that  a 
tax  on  the  sale  of  an  article,  imported  only  for  sale,  is  a  tax 
on  the  article  itself.  It  is  true  the  State  may  tax  occupations 
generally,  but  this  tax  must  be  paid  by  those  who  employ  the 
individual,  or  is  a  tax  on  his  business.  The  lawyer,  the  physi- 
cian, or  the  mechanic,  must  either  charge  more  on  the  article  in 
which  he  deals,  or  the  thing  itself  is  taxed  through  his  person. 
This  the  State  has  a  right  to  do,  because  no  constitutional  pro- 
hibition extends  to  it.  So,  a  tax  on  the  occupation  of  an  im- 
porter is,  in  like  manner,  a  tax  on  importation.  It  must  add  to 


288  CASES  ON  CONSTITUTIONAL  LAW. 

the  price  of  the  article,  and  be  paid  by  the  consumer,  or  by  the 
importer  himself,  in  like  manner  as  a  direct  duty  on  the  article 
itself  would  be  made.  This  the  State  has  not  a  right  to  do,  be- 
cause it  is  prohibited  by  the  constitution. 

In  support  of  the  argument  that  the  prohibition  ceases  the 
instant  the  goods  are  brought  into  the  country,  a  comparison  has 
been  drawn  between  the  opposite  words  export  and  import.  As, 
to  export,  it  is  said,  means  only  to  carry  goods  out  of  the  coun- 
try ;  so,  to  import,  means  only  to  bring  them  into  it.  But,  sup- 
pose we  extend  this  comparison  to  the  two  prohibitions.  The 
States  are  forbidden  to  lay  a  duty  on  exports,  and  the  United 
States  are  forbidden  to  lay  a  tax  or  duty  on  articles  exported 
from  any  State.  There  is  some  diversity  in  language,  but  none 
is  perceivable  in  the  act  which  is  prohibited.  The  United  States 
have  the  same  right  to  tax  occupations  which  is  possessed  by  the 
States.  Now,  suppose  the  United  States  should  require  every 
exporter  to  take  out  a  license,  for  which  he  should  pay  such  tax 
as  Congress  might  think  proper  to  impose;  would  government 
be  permitted  to  shield  itself  from  the  just  censure  to  which  this 
attempt  to  evade  the  prohibitions  of  the  constitution  would  ex- 
pose it,  by  saying  that  this  was  a  tax  on  the  person,  not  on  the 
article,  and  that  the  legislature  had  a  right  to  tax  occupations? 
Or,  suppose  revenue  cutters  were  to  be  stationed  off  the  coast 
for  the  purpose  of  levying  a  duty  on  all  merchandise  found  in 
vessels  which  were  leaving  the  United  States  for  foreign  coun- 
tries; would  it  be  received  as  an  excuse  for  this  outrage,  were 
the  government  to  say  that  exportation  meant  no  more  than 
carrying  goods  out  of  the  country,  and  as  the  prohibition  to  lay 
a  tax  on  imports,  or  things  imported,  ceased  the  instant  they 
were  brought  into  the  country,  so  the  prohibition  to  tax  articles 
exported  ceased  when  they  were  carried  out  of  the  country? 

We  think,  then,  that  the  act  under  which  the  plaintiffs  in 
error  were  indicted,  is  repugnant  to  that  article  of  the  consti- 
tution which  declares  that  "no  State  shall  lay  any  impost  or 
duties  on  imports  or  exports." 

2.  Is  it  also  repugnant  to  that  clause  in  the  constitution  which 
empowers  "congress  to  regulate  commerce  with  foreign  nations, 
and  among  the  several  States,  and  with  the  Indian  tribes?" 

The  oppressed  and  degraded  state  of  commerce  previous  to  the 
adoption  of  the  constitution  can  scarcely  be  forgotten.  It  was 
regulated  by  foreign  nations  with  a  single  view  to  their  own 
interests,  and  our  disunited  efforts  to  counteract  their  restrictions 
were  rendered  impotent  by  want  of  combination.  Congress,  in- 


BROWN  v.  STATE  OF  MARYLAND.  289 

deed,  possessed  the  power  of  making  treaties;  but  the  inability 
of  the  federal  government  to  enforce  them  had  become  so  ap- 
parent as  to  render  that  power  in  a  great  degree  useless.  Those 
who  felt  the  injury  arising  from  this  state  of  things,  and  those 
who  were  capable  of  estimating  the  influence  of  commerce  on 
the  prosperity  of  nations,  perceived  the  necessity  of  giving  the 
control  over  this  important  subject  to  a  single  government.  It 
may  be  doubted  whether  any  of  the  evils  proceeding  from  the 
feebleness  of  the  federal  government,  contributed  more  to  that 
great  revolution  which  introduced  the  present  system,  than  the 
deep  and  general  conviction  that  commerce  ought  to  be  regulated 
by  congress.  It  is  not,  therefore,  matter  of  surprise,  that  the 
grant  should  be  as  extensive  as  the  mischief,  and  should  com- 
prehend all  foreign  commerce,  and  all  commerce  among  the 
States.  To  construe  the  power  so  as  to  impair  its  efficacy,  would 
tend  to  defeat  an  object,  in  the  attainment  of  which  the  Ameri- 
can public  took,  and  justly  took,  that  strong  interest  which  arose 
from  a  full  conviction  of  its  necessity. 

What,  then,  is  the  just  extent  of  a  power  to  regulate  com- 
merce with  foreign  nations,  and  among  the  several  States! 

This  question  was  considered  in  the  case  of  Gibbons  v.  Ogden, 
9  Wheat.  1,  in  which  it  was  declared  to  be  complete  in  itself, 
and  to  acknowledge  no  limitations  other  than  are  prescribed  by 
the  constitution.  The  power  is  co-extensive  with  the  subject  on 
which  it  acts,  and  cannot  be  stopped  at  the  external  boundary  of 
a  State,  but  must  enter  its  interior. 

We  deem  it  unnecessary  now  to  reason  in  support  of  these 
propositions.  Their  truth  is  proved  by  facts  continually  before 
our  eyes,  and  was,  we  think,  demonstrated,  if  they  could  require 
demonstration,  in  the  case  already  mentioned. 

If  this  power  reaches  the  interior  of  a  State,  and  may  be  there 
exercised,  it  must  be  capable  of  authorizing  the  sale  of  those 
artir-les  which  it  introduces.  Commerce  is  intercourse:  one  of 
its  most  ordinary  ingredients  is  traffic.  It  is  inconceivable,  that 
the  power  to  authorize  this  traffic,  when  given  in  the  most  com- 
prehensive terms,  with  the  intent  that  its  efficacy  should  be  com- 
plete, should  cease  at  the  point  when  its  continuance  is  indis- 
pensable to  its  value.  To  what  purpose  should  the  power  to 
allow  importation  be  given,  unaccompanied  with  the  power  to 
authorize  a  sale  of  the  thing  imported  f  Sale  is  the  object  of 
importation,  and  is  an  essential  ingredient  of  that  intercourse, 
of  which  importation  constitutes  a  part.  It  is  as  essential  an 
ingredient,  as  indispensable  to  the  existence  of  the  entire  thing, 

C.  C.  L.-1I 


290  CASES  ON  CONSTITUTIONAL  LAW. 

then,  as  importation  itself.  It  must  be  considered  as  a  com- 
ponent part  of  the  power  to  regulate  commerce.  Congress  has  a 
right,  not  only  to  authorize  importation,  but  to  authorize  the 
importer  to  sell. 

If  this  be  admitted,  and  we  think  it  cannot  be  denied,  what  can 
be  the  meaning  of  an  act  of  congress  which  authorizes  importa- 
tion, and  offers  the  privilege  for  sale  at  a  fixed  price  to  every 
person  who  chooses  to  become  a  purchaser?  How  is  it  to  be 
construed,  if  an  intent  to  deal  honestly  and  fairly,  an  intent 
as  wise  as  it  is  moral,  is  to  enter  into  the  construction?  What 
can  be  the  use  of  the  contract,  what  does  the  importer  purchase, 
if  he  does  not  purchase  the  privilege  to  sell  ? 

What  would  be  the  language  of  a  foreign  government,  which 
should  be  informed  that  its  merchants,  after  importing  according 
to  law,  were  forbidden  to  sell  the  merchandise  imported?  What 
answer  would  the  United  States  give  to  the  complaints  and  just 
reproaches  to  which  such  an  extraordinary  circumstance  would 
expose  them?  No  apology  could  be  received,  or  even  offered. 
Such  a  state  of  things  would  break  up  commerce.  It  will  not 
meet  this  argument,  to  say,  that  this  state  of  things  will  never  be 
produced ;  that  the  good  sense  of  the  States  is  a  sufficient  security 
against  it.  The  constitution  has  not  confided  this  subject  to 
that  good  sense.  It  is  placed  elsewhere.  The  question  is,  where 
does  the  power  reside  ?  not,  how  far  will  it  be  probably  abused  ? 
The  power  claimed  by  the  State  is,  in  its  nature,  in  conflict  with 
that  given  to  congress;  and  the  greater  or  less  extent  in  which 
it  may  be  exercised  does  not  enter  into  the  inquiry  concerning 
its  existence. 

We  think,  then,  that  if  the  power  to  authorize  a  sale  exists 
in  congress,  the  conclusion  that  the  right  to  sell  is  connected 
with  the  law  permitting  importation,  as  an  inseparable  incident, 
is  inevitable. 

If  the  principles  we  have  stated  be  correct,  the  result  to  which 
they  conduct  us  cannot  be  mistaken.  Any  penalty  inflicted  on 
the  importer  for  selling  the  article,  in  his  character  of  importer, 
must  be  in  opposition  to  the  act  of  congress  which  authorizes 
importation.  Any  charge  on  the  introduction  and  incorporation 
of  the  articles  into  and  with  the  mass  of  property  in  the  coun- 
try, must  be  hostile  to  the  power  of  congress  to  regulate  com- 
merce, since  an  essential  part  of  that  regulation,  and  principal 
object  of  it,  is,  to  prescribe  the  regular  means  for  accomplish- 
ing that  introduction  and  incorporation. 

The  distinction  between  a  tax  on  the  thing  imported  and  on 


BROWN  v.  STATE  OF  MARYLAND  291 

the  person  of  the  importer,  can  have  no  influence  on  this  part  of 
the  subject.  It  is  too  obvious  for  controversy  that  they  interfere 
equally  with  the  power  to  regulate  commerce. 

It  has  been  contended  that  this  construction  of  the  power  to 
regulate  commerce,  as  was  contended  in  construing  the  prohibi- 
tion to  lay  duties  on  imports,  would  abridge  the  acknowledged! 
power  of  a  State  to  tax  its  own  citizens,  or  their  property  within 
its  territory. 

We  admit  this  power  to  be  sacred;  but  cannot  admit  that  it 
may  be  used  so  as  to  obstruct  the  free  course  of  a  power  given  to 
congress.  We  cannot  admit  that  it  may  be  used  so  as  to  obstruct 
or  defeat  the  power  to  regulate  commerce.  It  has  been  observed 
that  the  powers  remaining  with  the  States  may  be  so  exercised 
as  to  come  in  conflict  with  those  vested  in  congress.  When  this 
happens,  that  which  is  not  supreme  must  yield  to  that  which  is 
supreme.  This  great  and  universal  truth  is  inseparable  from 
the  nature  of  things,  and  the  constitution  has  applied  it  to  the 
often  interfering  powers  of  the  general  and  state  governments, 
as  a  vital  principle  of  perpetual  operation.  It  results,  neces- 
sarily, from  this  principle,  that  the  taxing  power  of  the  States 
must  have  some  limits.  It  cannot  reach  and  restrain  the  action 
of  the  national  government  within  its  proper  sphere.  It  cannot 
reach  the  administration  of  justice  in  the  courts  of  the  Union, 
or  the  collection  of  the  taxes  of  the  United  States,  or  restrain 
the  operation  of  any  law  which  congress  may  constitutionally 
pass.  It  cannot  interfere  with  any  regulation  of  commerce.  I  f 
the  States  may  tax  all  persons  and  property  found  on  their  ter- 
ritory, what  shall  restrain  them  from  taxing  goods  in  their 
transit  through  the  State  from  one  part  to  another,  for  the  pur- 
pose of  re-exportation  ?  The  laws  of  trade  authorize  this  opera- 
tion, and  general  convenience  requires  it.  Or  what  should  re- 
strain a  State  from  taxing  any  article  passing  through  it,  from 
one  State  to  another,  for  the  purpose  of  traffic  f  or  from  taxing 
the  transportation  of  articles  passing  from  the  State  itself  to 
another  State  for  commercial  purposes?  These  cases  are  all 
within  the  sovereign  power  of  taxation,  but  would  obviously 
derange  the  measures  of  congress  to  regulate  commerce,  and 
affect  materially  the  purpose  for  which  that  power  was  given. 
We  deem  it  unnecessary  to  press  this  argument  further,  or  to 
give  additional  illustrations  of  it,  because  the  subject  was  taken 
up  and  considered  with  great  attention,  in  McCulloch  v.  The 
State  of  Maryland,  4  W.  316,  the  decision  in  which  case  it,  we 
think,  entirely  applicable  to  this. 


292  CASES  ON  CONSTITUTIONAL  LAW. 

It  may  be  proper  to  add  that  we  suppose  the  principles  laid 
down  in  this  case  to  apply  equally  to  importations  from  a  sis- 
ter State.  "We  do  not  mean  to  give  any  opinion  on  a  tax  dis- 
criminating between  foreign  and  domestic  articles. 

We  think  there  is  error  in  the  judgment  of  the  court  of  ap- 
peals of  the  State  of  Maryland,  in  affirming  the  judgment  of  the 
Baltimore  city  court,  because  the  act  of  the  legislature  of 
Maryland,  imposing  the  penalty  for  which  the  said  judgment  is 
rendered,  is  repugnant  to  the  constitution  of  the  United  States, 
and,  consequently,  void.  The  judgment  is  to  be  reversed,  and 
the  cause  remanded  to  that  court,  with  instructions  to  enter 
judgment  in  favor  of  the  appellants. 

THOMPSON,  J.,  dissented.     .     .     . 

NOTE. — The  "original  package  doctrine,"  which  was  first  formulated 
in  the  principal  case,  has  been  much  criticized.  See  The  License  Cases 
(1847),  5  Howard,  504,  615;  Brown  v.  Houston  (1885),  114  U.  S.  622; 
and  Prentice  and  Egan,  The  Commerce  Clause  of  the  Federal  Constitution, 
66.  In  Woodruff  v.  Parham  (1869),  8  Wallace,  123,  it  was  held  that  it  did 
not  apply  to  interstate  shipments,  but  this  ruling  was  reversed  in  Bowman 
v.  Chicago  &  Northwestern  Ry.  (1888),  125  U.  S.  465,  which  represents  the 
prevailing  rule.  For  the  application  of  the  rule  to  shipments  of  liquor  see 
the  note  to  Leisy  v.  Hardin  (1890),  135  U.  S.  100,  post,  382. 

As  to  what  constitutes  an  original  package,  see  May  &  Co.  v.  New 
Orleans  (1900),  178  U.  S.  496;  Austin  v.  Tennessee  (1900),  179  U.  S.  343; 
Cook  v.  Marshall  County  (1905),  196  U.  S.  261;  and  Purity  Extract  Co.  v. 
Lynch  (1912),  226  U.  S.  192. 

As  to  the  power  of  the  States  to  tax  interstate  commerce,  see  Case  of  the 
State  Freight  Tax  (1873),  15  Wallace,  232;  Bobbins  v.  Shelby  County 
Taxing  District  (1887),  120  U.  S.  489;  Leloup  v.  Port  of  Mobile  (1888), 
127  U.  S.  640 ;  and  as  to  their  power  to  tax  property  employed  in  interstate 
commerce  see  Gloucester  Ferry- Co.  v.  Pennsylvania  (1885),  114  U.  S.  196; 
Adams  Express  Co.  v.  Ohio  (1897),  165  U.  S.  194.  As  to  when  interstate 
shipments  begin  and  terminate,  see  The  Daniel  Ball  (1871),  10  Wallace, 
557;  Coe  v.  Errol  (1886),  116  U.  S.  517;  Rhodes  v.  Iowa  (1898),  170  U.  S. 
412;  Kelley  v.  Ehoads  (1903),  188  U.  S.  1;  Diamond  Match  Co.  v.  Ontona- 
gon  (1903),  188  U.  S.  82;  American  Express  Co.  v.  Iowa  (1905),  196  U.  S. 
133;  General  Oil  Co.  v.  Grain  (1908),  209  TJ.  S.  211. 

Chief  Justice  Taney  was  counsel  for  the  State  of  Maryland  in  the 
principal  case.  In  the  License  Cases  (1847),  5  Howard,  504,  575,  he  said: 

I  at  that  time  persuaded  myself  that  I  was  right,  and  thought 
the  decision  of  the  court  restricted  the  powers  of  the  State  more  than 
a  sound  construction  of  the  constitution  of  the  United  States  would 
warrant.  But  further  and  more  mature  reflection  has  convinced  me 
that  the  rule  laid  down  by  the  supreme  court  is  a  just  and  safe 
one,  and,  perhaps,  the  best  that  could  have  been  adopted  for  pre- 
serving the  right  of  the  United  States  on  the  one  hand,  and  of  the 
States  on  the  other,  and  preventing  collision  between  them. 


COOLEY  v.  BOARD  OF  WARDEN       293 

COOLEY  v.  THE  BOARD  OP  WARDENS  OF  THE  PORT 
OF  PHILADELPHIA 

SUPREME  COUKT  or  THE  UNITED  STATES.    1851. 
12  Howard,  299;  13  Lawyers'  Ed.  996. 

Cumns,  J.,  delivered  the  opinion  of  the  court. 

Theae  cases  are  brought  here  by  writs  of  error  to  the  supreme 
court  of  the  commonwealth  of  Pennsylvania. 

They  are  actions  to  recover  half-pilotage  fees  under  the  29th 
section  of  the  act  of  the  legislature  of  Pennsylvania,  passed 
on  the  second  day  of  March,  1803.  The  plaintiff  in  error 
alleges  that  the  highest  court  of  the  State  has  decided  against  a 
right  claimed  by  him  under  the  constitution  of  the  United 
States.  That  right  is,  to  be  exempted  from  the  payment  of  the 
sums  of  money,  demanded  pursuant  to  the  state  law  above 
referred  to,  because  that  law  contravenes  several  provisions  of 
the  constitution  of  the  United  States. 

The  particular  section  of  the  state  law  drawn  in  question  is 
as  follows :  ' '  That  every  ship  or  vessel  arriving  from,  or  bound 
to  any  foreign  port  or  place,  and  every  ship  or  vessel  of  the 
burden  of  seventy-five  tons  or  more,  sailing  from,  or  bound  to 
any  port  not  within  the  River  Delaware,  shall  be  obliged  to 
receive  a  pilot.  And  it  shall  be  the  duty  of  the  master  of  every 
such  ship  or  vessel,  within  thirty-six  hours  next  after  the  arrival 
of  such  ship  or  vessel  at  the  city  of  Philadelphia,  to  make  report 
to  the  master-warden  of  the  name  of  such  ship  or  vessel,  her 
draught  of  water,  and  the  name  of  the  pilot  who  shall  have  con- 
ducted her  to  port.  And  when  any  such  vessel  shall  be  outward 
bound,  the  master  of  such  vessel  shall  make  known  to  the  war- 
dens the  name  of  such  vessel,  and  of  the  pilot  who  is  to  conduct 
her  to  the  capes,  and  her  draught  of  water  at  that  time.  And  it 
shall  be  the  duty  of  the  wardens  to  enter  every  such  vessel  in  a 
book  to  be  by  them  kept  for  that  purpose,  without  fee  or  reward. 
And  if  the  master  of  any  ship  or  vessel  shall  neglect  to  make 
such  report,  he  shall  forfeit  and  pay  the  sum  of  $60.  And  if  the 
master  of  any  such  ship  or  vessel  shall  refuse  or  neglect  to  take 
a  pilot,  the  master,  owner,  or  consignee  of  such  vessel  shall  forf.-it 
and  pay  to  the  warden  aforesaid  a  sum  equal  to  the  half -pilotage 
of  such  ship  or  vessel,  to  the  use  of  the  Society  for  the  Relief, 
etc.,  to  be  recovered  as  pilotage  in  the  manner  hereinafter 
directed:  Provided  always,  that  where  it  shall  appear  to  the 
warden  that  in  case  of  an  inward  bound  vessel,  a  pilot  did  not 
offer  before  she  had  reached  Reedy  Island:  or,  in  case  of  an 


294  CASES  ON  CONSTITUTIONAL  LAW. 

outward  bound  vessel,  that  a  pilot  could  not  be  obtained  for 
twenty-four  hours  after  such  vessel  was  ready  to  depart,  the 
penalty  aforesaid,  for  not  having  a  pilot,  shall  not  be  incurred. ' ' 
This  is  one  section  of  "An  Act  to  establish  a  Board  of  Wardens 
for  the  Port  of  Philadelphia,  and  for  the  Regulation  of  Pilots 
and  Pilotages,  &c.,"  and  the  scope  of  the  act  is,  in  conformity 
with  the  title,  to  regulate  the  whole  subject  of  the  pilotage  of 
that  port. 

We  think  this  particular  regulation  concerning  half-pilotage 
fees,  is  an  appropriate  part  of  a  general  system  of  regulations  of 
this  subject.  Testing  it  by  the  practice  of  commercial  States  and 
countries  legislating  on  this  subject,  we  find  it  has  usually  been 
deemed  necessary  to  make  similar  provisions.  Numerous  laws 
of  this  kind  are  cited  in  the  learned  argument  of  the  counsel  for 
the  defendant  in  error ;  and  their  fitness,  as  part  of  a  system  of 
pilotage,  in  many  places,  may  be  inferred  from  their  existence 
in  so  many  different  States  and  countries.  . 

It  remains  to  consider  the  objection  that  it  is  repugnant  to  the 
third  clause  of  the  eighth  section  of  the  first  article.  ' '  The  con- 
gress shall  have  power  to  regulate  commerce  with  foreign  nations 
and  among  the  several  States,  and  with  the  Indian  tribes. ' ' 

That  the  power  to  regulate  commerce  includes  the  regulation 
of  navigation,  we  consider  settled.  And  when  we  look  to  the 
nature  of  the  service  performed  by  pilots,  to  the  relations  which 
that  service  and  its  compensations  bear  to  navigation  between  the 
several  States,  and  between  the  ports  of  the  United  States  and 
foreign  countries,  we  are  brought  to  the  conclusion,  that  the 
regulation  of  the  qualifications  of  pilots,  of  the  modes  and  times 
of  offering  and  rendering  their  services,  of  the  responsibilities 
which  shall  rest  upon  them,  of  the  powers  they  shall  possess, 
of  the  compensation  they  may  demand,  and  of  the  penalties  by 
which  their  rights  and  duties  may  be  enforced,  do  constitute 
regulations  of  navigation,  and  consequently  of  commerce,  within 
the  just  meaning  of  this  clause  of  the  constitution. 

The  power  to  regulate  navigation  is  the  power  to  prescribe 
rules  in  conformity  with  which  navigation  must  be  carried  on. 
It  extends  to  the  persons  who  conduct  it,  as  well  as  to  the  instru- 
ments used.  Accordingly,  the  first  congress  assembled  under 
the  constitution  passed  laws  requiring  the  masters  of  ships  and 
vessels  of  the  United  States  to  be  citizens  of  the  United  States, 
and  established  many  rules  for  the  government  and  regulation 
of  officers  and  seamen.  1  Stats,  at  Large,  55,  131.  These  have 


COOLEY  v.  BOARD  OF  WARDENS  295 

been  from  time  to  time  added  to  and  changed,  and  we  are  not 
aware  that  their  validity  has  been  questioned.  . 

A  majority  of  the  court  are  of  opinion  that  a  regulation  of 
pilots  is  a  regulation  of  commerce,  within  the  grant  to  congress 
of  the  commercial  power,  contained  in  the  third  clause  of  the 
eighth  section  of  the  first  article  of  the  constitution. 

It  becomes  necessary,  therefore,  to  consider  whether  this  law 
of  Pennsylvania,  being  a  regulation  of  commerce,  is  valid. 

The  act  of  congress  of  the  7th  of  August,  1789,  §  4,  is  as 
follows : 

"That  all  pilots  in  the  bays,  inlets,  rivers,  harbors,  and  ports 
of  the  United  States  shall  continue  to  be  regulated  in  conformity 
with  the  existing  laws  of  the  States,  respectively,  wherein  such 
pilots  may  be,  or  with  such  laws  as  the  States  may  respectively 
hereafter  enact  for  the  purpose,  until  further  legislative  pro- 
vision shall  be  made  by  congress." 

If  the  law  of  Pennsylvania,  now  in  question,  had  been  in 
existence  at  the  date  of  this  act  of  congress,  we  might  hold  it  to 
have  been  adopted  by  congress,  and  thus  made  a  law  of  the 
United  States,  and  so  valid.  Because  this  act  does,  in  effect,  give 
the  force  of  an  act  of  congress,  to  the  then  existing  state  laws  on 
this  subject,  so  long  as  they  should  continue  unrepealed  by  the 
State  which  enacted  them. 

But  the  law  on  which  these  actions  are  founded  was  not 
enacted  till  1803.  What  effect  then  can  be  attributed  to  so  much 
of  the  act  of  1789  as  declares  that  pilots  shall  continue  to  be 
regulated  in  conformity  "with  such  laws  as  the  States  may 
respectively  hereafter  enact  for  the  purpose,  until  further  legis- 
lative provision  shall  be  made  by  congress''? 

If  the  States  were  divested  of  the  power  to  legislate  on  this 
subject  by  the  grant  of  the  commercial  power  to  congress,  it  is 
plain  this  act  could  not  confer  upon  them  power  thus  to  legislate. 
If  the  constitution  excluded  the  States  from  making  any  law 
regulating  commerce,  certainly  congress  cannot  regrant,  or  in 
any  manner  reconvey  to  the  States  that  power.  And  yet  this 
act  of  1789  gives  its  sanction  only  to  laws  enacted  by  the  State*. 
This  necessarily  implies  a  constitutional  power  to  legislate;  for 
only  a  rule  created  by  the  sovereign  power  of  a  State  acting  in 
its  legislative  capacity,  can  be  deemed  a  law  enacted  by  a  State ; 
and  if  the  State  has  so  limited  its  sovereign  power  that  it  no 
longer  extends  to  a  particular  subject,  manifestly  it  cannot,  in 
any  proper  sense,  be  said  to  enact  laws  thereon.  Knt.-rtaining 
these  views,  we  are  brought  directly  and  unavoidably  to  the 


296  CASES  ON  CONSTITUTIONAL  LAW. 

consideration  of  the  question,  whether  the  grant  of  the  commer- 
cial power  to  congress,  did  per  se  deprive  the  States  of  all  power 
to  regulate  pilots.  This  question  has  never  been  decided  by 
this  court,  nor,  in  our  judgment,  has  any  case  depending  upon 
all  the  considerations  which  must  govern  this  one,  come  before 
this  court.  The  grant  of  commercial  power  to  congress  does  not 
contain  any  terms  which  expressly  exclude  the  States  from  exer- 
cising an  authority  over  its  subject-matter.  If  they  are  ex- 
cluded, it  must  be  because  the  nature  of  the  power  thus  granted 
to  congress  requires  that  a  similar  authority  should  not  exist  in 
the  States.  If  it  were  conceded  on  the  one  side,  that  the  nature 
of  this  power,  like  that  to  legislate  for  the  District  of  Columbia, 
is  absolutely  and  totally  repugnant  to  the  existence  of  similar 
power  in  the  States,  probably  no  one  would  deny  that  the  grant 
of  the  power  to  congress,  as  effectually  and  perfectly  excludes 
the  States  from  all  future  legislation  on  the  subject,  as  if  express 
words  had  been  used  to  exclude  them.  And  on  the  other  hand, 
if  it  were  admitted  that  the  existence  of  this  power  in  congress, 
like  the  power  of  taxation,  is  compatible  with  the  existence  of 
a  similar  power  in  the  States,  then  it  would  be  in  conformity 
with  the  contemporary  exposition  of  the  constitution,  (Federalist, 
No.  32),  and  with  the  judicial  construction  given  from  time  to 
time  by  this  court,  after  the  most  deliberate  consideration,  to 
hold  that  the  mere  grant  of  such  a  power  to  congress,  did  not 
imply  a  prohibition  on  the  States  to  exercise  the  same  power; 
that  it  is  not  the  mere  existence  of  such  a  power,  but  its  exercise 
by  congress,  which  may  be  incompatible  with  the  exercise  of 
the  same  power  by  the  States,  and  that  the  States  may  legislate 
in  the  absence  of  congressional  regulations.  Sturges  v.  Crownin- 
shield,  4  Wheat.  193 ;  Houston  v.  Moore,  5  Wheat.  1 ;  Wilson  v. 
Blackbird  Creek  Co.,  2  Pet.  251. 

The  diversities  of  opinion,  therefore,  which  have  existed  on 
this  subject,  have  arisen  from  the  different  views  taken  of  the 
nature  of  this  power.  But  when  the  nature  of  a  power  like  this 
is  spoken  of,  when  it  is  said  that  the  nature  of  the  power  requires 
that  it  should  be  exercised  exclusively  by  congress,  it  must  be 
intended  to  refer  to  the  subjects  of  that  power,  and  to  say  they 
are  of  such  a  nature  as  to  require  exclusive  legislation  by  con- 
gress. Now,  the  power  to  regulate  commerce  embraces  a  vast 
field,  containing  not  only  many,  but  exceedingly  various  sub- 
jects, quite  unlike  in  their  nature ;  some  imperatively  demanding 
a  single  uniform  rule,  operating  equally  on  the  commerce  of  the 
United  States  in  every  port;  and  some,  like  the  subject  now  in 


COOLEY  v.  BOARD  OF  WARDENS.  297 

question,  as  imperatively  demanding  that  diversity  which  alone 
can  meet  the  local  necessities  of  navigation. 

Either  absolutely  to  affirm,  or  deny  that  the  nature  of  this 
power  requires  exclusive  legislation  by  congress,  is  to  lose  sight  of 
the  nature  of  the  subjects  of  this  power,  and  to  assert  concerning 
all  of  them  what  is  really  applicable  but  to  a  part.  Whatrv.-r 
subjects  of  this  power  are  in  their  nature  national,  or  admit  only 
of  one  uniform  system,  or  plan  of  regulation,  may  justly  be  said 
to  be  of  such  a  nature  as  to  require  exclusive  legislation  by  con- 
gress. That  this  cannot  be  affirmed  of  laws  for  the  regulation 
of  pilots  and  pilotage  is  plain.  The  act  of  1789  contains  a  clear 
and  authoritative  declaration  by  the  first  congress,  that  the 
nature  of  this  subject  is  such  that  until  congress  should  find  it 
necessary  to  exert  its  power,  it  should  be  left  to  the  legislation  of 
the  States;  that  it  is  local  and  not  national;  that  it  is  likely  to 
be  the  best  provided  for,  not  by  one  system,  or  plan  of  regula- 
tion, but  by  as  many  as  the  legislative  discretion  of  the  several 
States  should  deem  applicable  to  the  local  peculiarities  of  the 
ports  within  their  limits. 

Viewed  in  this  light,  so  much  of  this  act  of  1789  as  declares 
that  pilots  shall  continue  to  be  regulated  "by  such  laws  as  the 
States  may  respectively  hereafter  enact  for  that  purpose,"  in- 
stead of  being  held  to  be  inoperative,  as  an  attempt  to  confer  on 
the  States  a  power  to  legislate,  of  which  the  constitution  had 
deprived  them,  is  allowed  an  appropriate  and  important  signifi- 
cation. It  manifests  the  understanding  of  congress,  at  the  outset 
of  the  government,  that  the  nature  of  this  subject  is  not  such  as 
to  require  its  exclusive  legislation.  The  practice  of  the  States, 
and  of  the  national  government,  has  been  in  conformity  with 
this  declaration,  from  the  origin  of  the  national  government 
to  this  time;  and  the  nature  of  the  subject  when  examined  is 
such  as  to  leave  no  doubt  of  the  superior  fitness  and  propriety, 
not  to  say  the  absolute  necessity,  of  different  systems  of  regula- 
tion, drawn  from  local  knowledge  and  experience,  and  conformed 
to  local  wants.  How,  then,  can  we  say  that,  by  the  mere  grant 
of  power  to  regulate  commerce,  the  States  are  deprived  of  all 
the  power  to  legislate  on  this  subject,  because  from  the  nature 
of  the  power  the  legislation  of  congress  must  be  exclusive  t  This 
would  be  to  affirm  that  the  nature  of  the  power  is,  in  this  case, 
something  different  from  the  nature  of  the  subject  to  which,  in 
such  case,  the  power  extends,  and  that  the  nature  of  the  power 
necessarily  demands,  in  all  cases,  exclusive  legislation  by  con- 
gress, while  the  nature  of  one  of  the  subjects  of  that  power,  not 


298  CASES  ON  CONSTITUTIONAL  LAW. 

only  does  not  require  such  exclusive  legislation,  but  may  be  best 
provided  for  by  many  different  systems  enacted  by  the  States,  in 
conformity  with  the  circumstances  of  the  ports  within  their  lim- 
its. In  construing  an  instrument  designed  for  the  formation  of 
a  government,  and  in  determining  the  extent  of  one  of  its  im- 
portant grants  of  power  to  legislate,  we  can  make  no  such  dis- 
tinction between  the  nature  of  the  power  and  the  nature  of  the 
subject  on  which  that  power  was  intended  practically  to  operate, 
nor  consider  the  grant  more  extensive,  by  affirming  of  the  power, 
what  is  not  true  of  its  subject  now  in  question. 

It  is  the  opinion  of  a  majority  of  the  court  that  the  mere 
grant  to  congress  of  the  power  to  regulate  commerce  did  not 
deprive  the  States  of  power  to  regulate  pilots,  and  that  although 
congress  has  legislated  on  this  subject,  its  legislation  manifests 
an  intention,  with  a  single  exception,  not  to  regulate  this  subject, 
but  to  leave  its  regulation  to  the  several  States.  To  these  pre- 
cise questions,  which  are  all  we  are  called  on  to  decide,  this 
opinion  must  be  understood  to  be  confined.  It  does  not  extend 
to  the  question  what  other  subjects,  under  the  commercial  power, 
are  within  the  exclusive  control  of  congress,  or  may  be  regulated 
by  the  States  in  the  absence  of  all  congressional  legislation ;  nor 
to  the  general  question,  how  far  any  regulation  of  a  subject  by 
congress  may  be  deemed  to  operate  as  an  exclusion  of  all  legis- 
lation by  the  States  upon  the  same  subject.  "We  decide  the  pre- 
cise questions  before  us,  upon  what  we  deem  sound  principles, 
applicable  to  this  particular  subject  in  the  State  in  which  the 
legislation  of  congress  has  left  it.  We  go  no  further. 

We  have  not  adverted  to  the  practical  consequences  of  holding 
that  the  States  possess  no  power  to  legislate  for  the  regulation 
of  pilots,  though  in  our  apprehension  these  would  be  of  the  most 
serious  importance.  For  more  than  sixty  years  this  subject  has 
been  acted  on  by  the  States,  and  the  systems  of  some  of  them 
created  and  of  others  essentially  modified  during  that  period. 
To  hold  that  pilotage  fees  and  penalties  demanded  and  received 
during  that  time  have  been  illegally  exacted,  under  color  of 
void  laws,  would  work  an  amount  of  mischief  which  a  clear  con- 
viction of  constitutional  duty,  if  entertained,  must  force  us  to 
occasion,  but  which  could  be  viewed  by  no  just  mind  without 
deep  regret.  Nor  would  the  mischief  be  limited  to  the  past.  If 
congress  were  now  to  pass  a  law  adopting  the  existing  state  laws, 
if  enacted  without  authority,  and  in  violation  of  the  constitution, 
it  would  seem  to  us  to  be  a  new  and  questionable  mode  of  legis- 
lation. 


COOLEY  v.  BOARD  OF  WARDENS. 

If  the  grant  of  commercial  power  in  the  constitution  has  de- 
prived the  States  of  all  power  to  legislate  for  the  regulation  of 
pilots,  if  their  laws  on  this  subject  are  mere  usurpations  upon 
the  exclusive  power  of  the  general  government,  and  utterly  void, 
it  may  be  doubted  whether  congress  could,  with  propriety,  rec- 
ognize them  as  laws,  and  adopt  them  as  its  own  acts;  and  how 
are  the  legislatures  of  the  States  to  proceed  in  future,  to  watch 
over  and  amend  these  laws,  as  the  progressive  wants  of  a  growing 
commerce  will  require,  when  the  members  of  those  legislatures 
are  made  aware  that  they  cannot  legislate  on  this  subject  without 
violating  the  oaths  they  have  taken  to  support  the  constitution 
of  the  United  States? 

We  are  of  opinion  that  this  state  law  was  enacted  by  virtue 
of  a  power,  residing  in  the  State  to  legislate,  that  it  is  not  in 
conflict  with  any  law  of  congress ;  that  it  does  not  interfere  with 
any  system  which  congress  has  established  by  making  regula- 
tions, or  by  intentionally  leaving  individuals  to  their  own  unre- 
stricted action;  that  this  law  is  therefore  valid,  and  the  judg- 
ment of  the  supreme  court  of  Pennsylvania  in  each  case  must 
be  affirmed. 

M'LEAN,  J.,  and  WAYNE,  J.,  dissented;  and  DANIEL,  J.,  al- 
though he  concurred  in  the  judgment  of  the  court,  yet  dissented 
from  its  reasoning.  .  .  . 

NOTE. — The  rale  of  the  principal  ease,  which  has  been  generally  ad- 
hered to  since  this  decision,  was  first  formulated  in  the  Supreme  Court  by 
Mr.  Justice  Woodbury  in  The  License  Cases  (1846),  5  Howard,  504,  624, 
where  he  said: 

There  is  much  in  connection  with  foreign  commerce  which  is 
local  within  each  State,  convenient  for  its  regulation  and  useful  to 
the  public,  to  be  acted  on  by  each  till  the  power  is  abused  or  some 
course  is  taken  by  Congress  conflicting  with  it  Such  are  the  deposit 
of  ballast  in  harbours,  the  extension  of  wharves  into  tidewater, 
the  supervision  of  the  anchorage  of  ships,  the  removal  of  obstruc- 
tions, the  allowance  of  bridges  with  suitable  draws,  and  various 
other  matters  that  need  not  be  enumerated,  besides  the  exercise 
of  numerous  police  and  health  powers,  which  are  also  by  many 
claimed  upon  different  grounds.  .  .  .  The  States,  not  conflict- 
ing with  any  uniform  and  general  regulations  by  Congress  as  to 
foreign  commerce,  must  for  convenience,  if  not  necessity,  from 
the  very  nature  of  the  power,  not  be  debarred  from  any  legislation 
o{  a  local  and  detailed  character  on  matters  connected  with  that 
commerce  omitted  by  Congress.  And  to  hold  the  power  of  Congress 
as  to  such  topics  exclusive,  in  every  respect,  and  prohibitory  to 
the  States,  though  never  exercised  by  Congress,  as  fully  as  when  in 


300  CASES  ON  CONSTITUTIONAL  LAW. 

active  operation,  which  is  the  opposite  theory,  would  create  infinite 
inconvenience,  and  detract  much  from  the  cordial  cooperation  and 
consequent  harmony  between  both  governments,  in  their  appropri- 
ate spheres.  It  would  nullify  numerous  useful  laws  and  regulations 
in  all  the  Atlantic  and  commercial  States  in  the  Union. 

At  a  still  earlier  date,  Daniel  Webster,  as  counsel  for  the  appellant  in 
Gibbons  v.  Ogden  (1824),  9  Wheaton,  1,  14,  had  said: 

It  should  be  repeated,  that  the  words  used  in  the  constitution, 
"to  regulate  commerce,"  are  so  very  general  and  extensive,  that 
they  might  be  construed  to  cover  a  vast  field  of  legislation,  part 
of  which  has  always  been  occupied  by  State  laws;  and,  therefore, 
the  words  must  have  a  reasonable  construction,  and  the  power 
should  be  considered  as  exclusively  vested  in  Congress,  so  far,  and 
so  far  only,  as  the  nature  of  the  power  requires. 

The  pilotage  laws  of  the  United  States  are  well  summarized  and  the 
doctrine  of  the  principal  case  is  affirmed  in  Anderson  v.  Pacific  Coast 
Steamship  Co.  (1912),  225  U.  S.  187. 


IN  RE  DEBS,  PETITIONER. 

SUPREME  COURT  OF  THE  UNITED  STATES.     1895. 
158  U.  S.  564;  39  Lawyers'  Ed.  1092. 

[This  case  grew  out  of  the  situation  created  by  the  railway 
strike  in  Chicago  in  the  summer  of  1894.  By  direction  of  the 
Attorney-General  of  the  United  States,  the  district  attorney  for 
the  Northern  District  of  Illinois  filed  a  bill  of  complaint  in  the 
Circuit  Court  of  the  United  States  in  which  it  was  averred  that 
the  twenty-two  railroads  named  therein  were  engaged  in  the 
business  of  interstate  commerce  and  in  the  transportation  of  the 
the  United  States  mails;  that  four  of  the  defendants,  officers  of 
the  American  Railway  Union,  had  combined  with  others  to  com- 
pel an  adjustment  of  a  dispute  between  the  Pullman  Palace 
Car  Company  and  its  employees  by  boycotting  the  cars  of  the 
company ;  that  to  make  the  boycott  effective,  they  had  prevented 
certain  of  the  railroads  running  out  of  Chicago  from  operating 
their  trains,  and  were  combining  to  extend  such  boycott  against 
the  Pullman  cars  by  causing  strikes  among  employees  of  all  roads 
attempting  to  haul  the  same;  that  the  defendants  and  others 
unknown  proceeded  by  collecting  together  in  large  numbers,  by 
threats,  intimidation,  force  and  violence,  to  prevent  the  said 
railways  from  employing  other  persons  to  fill  the  vacancies 
aforesaid;  that  the  defendants  and  others  unknown  did  with 


IN  RE  DEBS.  301 

force  and  violence  obstruct,  derail,  and  wreck  the  engine*  and 
trains  of  the  said  railways,  both  passenger  and  freight,  engaged 
in  interstate  commerce  and  in  carrying  the  United  States  mails. 
Following  these  allegations  was  a  prayer  for  an  injunction.  The 
court  thereupon  ordered  an  injunction  commanding  the  defend- 
ants ' '  and  all  persons  combining  and  conspiring  with  them,  and 
all  other  persons  whomsoever  absolutely  to  desist  and  refrain 
from"  doing  the  unlawful  acts  specified  in  the  bill.  The  injunc- 
tion was  served  on  those  of  the  defendants  who  are  here  as  i>«-ti 
tioners.  On  December  14,  these  petitioners  were  found  guilty 
of  contempt  and  sentenced  to  imprisonment  in  the  county  jail 
for  terms  varying  from  three  to  six  months.  Having  been  com- 
mitted to  jail,  they  on  January  14,  1895,  applied  to  this  court 
for  a  writ  of  error  and  also  a  writ  of  habeas  corpus.  The  former 
was  denied  on  the  ground  that  the  order  of  the  Circuit  Court 
was  not  a  final  judgment  or  decree.  The  latter  is  now  to  be 
considered.] 

MB.  JUSTICE  BREWER  .  .  .  delivered  the  opinion  of  the 
court. 

The  case  presented  by  the  bill  is  this:  The  United  States, 
finding  that  the  interstate  transportation  of  persons  and  prop- 
erty, as  well  as  the  carriage  of  the  mails,  is  forcibly  obstructed, 
and  that  a  combination  and  conspiracy  exists  to  subject  the  con- 
trol of  such  transportation  to  the  will  of  the  conspirators,  applied 
to  one  of  their  courts,  sitting  as  a  court  of  equity,  for  an  injunc- 
tion to  restrain  such  obstruction  and  prevent  carrying  into 
effect  such  conspiracy.  Two  questions  of  importance  are  sug- 
gested: First.  Are  the  relations  of  the  general  government  to 
interstate  commerce  and  the  transportation  of  the  mails  such 
as  to  authorize  a  direct  interference  to  prevent  a  forcible  obstnu1 
tion  thereof  T  Second.  If  authority  exists,  as  authority  in  gov- 
ernment implies  both  power  and  duty,  has  a  court  of  equity 
jurisdiction  to  issue  an  injunction  in  aid  of  the  performance  of 
such  duty. 

First.  What  are  the  relations  of  the  general  government  to 
interstate  commerce  and  the  transportation  of  the  mails?  Th«»y 
are  those  of  direct  supervision,  control,  and  management.  While 
under  the  dual  system  which  prevails  with  us  the  powers  of  gov- 
ernment are  distributed  between  the  State  and  the  Nation,  and 
while  the  latter  is  properly  styled  a  government  of  enumerated 
powers,  yet  within  the  limits  of  such  enumeration  it  has  all  the 
attributes  of  sovereignty,  and,  in  the  exercise  of  those  enu- 


302  CASES  ON  CONSTITUTIONAL  LAW. 

merated  powers,  acts  directly  upon  the  citizen,  and  not  through 
the  intermediate  agency  of  the  State.  .  .  . 

Among  the  powers  expressly  given  to  the  national  government 
are  the  control  of  interstate  commerce  and  the  creation  and  man- 
agement of  a  post-office  system  for  the  nation.  .  .  .  [Here 
follows  a  consideration  of  the  statutes  passed  in  the  exercise  of 
these  powers.] 

Obviously  these  powers  given  to  the  national  government  over 
interstate  commerce  and  in  respect  to  the  transportation  of  the 
mails  were  not  dormant  and  unused.  Congress  had  taken  hold 
of  these  two  matters,  and  by  various  and  specific  acts  had  as- 
sumed and  exercised  the  powers  given  to  it,  and  was  in  full  dis- 
charge of  its  duty  to  regulate  interstate  commerce  and  carry 
the  mails.  The  validity  of  such  exercise  and  the  exclusiveness 
of  its  control  had  been  again  and  again  presented  to  this  court 
for  consideration.  It  is  curious  to  note  the  fact  that  in  a  large 
proportion  of  the  cases  in  respect  to  interstate  commerce  brought 
to  this  court  the  question  presented  was  of  the  validity  of  state 
legislation  in  its  bearings  upon  interstate  commerce,  and  the 
uniform  course  of  decision  has  been  to  declare  that  it  is  not 
within  the  competency  of  a  State  to  legislate  in  such  a  manner 
as  to  obstruct  interstate  commerce.  If  a  State  with  its  recog- 
nized powers  of  sovereignty  is  impotent  to  obstruct  interstate 
commerce,  can  it  be  that  any  mere  voluntary  association  of  in- 
dividuals within  the  limits  of  that  State  has  a  power  which  the 
State  itself  does  not  possess? 

As,  under  the  Constitution,  power  over  interstate  commerce 
and  the  transportation  of  the  mails  is  vested  in  the  national  gov- 
ernment, and  Congress  by  virtue  of  such  grant  has  assumed 
actual  and  direct  control,  it  follows  that  the  national  govern- 
ment may  prevent  any  unlawful  and  forcible  interference  there- 
with. But  how  shall  this  be  accomplished?  Doubtless,  it  is 
within  the  competency  of  Congress  to  prescribe  by  legislation 
that  any  interference  with  these  matters  shall  be  offenses  against 
the  United  States,  and  prosecuted  and  punished  by  indictment 
in  the  proper  courts.  But  is  that  the  only  remedy?  Have  the 
vast  interests  of  the  nation  in  interstate  commerce,  and  in  the 
transportation  of  the  mails,  no  other  protection  than  lies  in  the 
possible  punishment  of  those  who  interfere  with  it?  To  ask 
the  question  is  to  answer  it.  By  article  3,  section  2,  clause  3,  of 
the  Federal  Constitution  it  is  provided :  ' '  The  trial  of  all  crimes 
except  in  cases  of  impeachment  shall  be  by  jury;  and  such  trial 
shall  be  held  in  the  State  where  the  said  crime  shall  have  been 


IX  RE  DEBS.  303 

committed."  If  all  the  inhabitants  of  a  State,  or  even  a  great 
body  of  them,  should  combine  to  obstruct  interstate  commerce 
or  the  transportation  of  the  mails,  prosecutions  for  such  offense* 
had  in  such  a  community  would  be  doomed  in  advance  to  failure. 
And  if  the  certainty  of  such  failure  was  known,  and  the  national 
government  had  no  other  way  to  enforce  the  freedom  of  inter- 
state commerce  and  the  transportation  of  the  mails  than  l>y 
prosecution  and  punishment  for  interference  therewith,  the 
whole  interests  of  the  nation  in  these  respects  would  be  at  the 
absolute  mercy  of  a  portion  of  the  inhabitants  of  that  single 
State. 

But  there  is  no  such  impotency  in  the  national  government. 
The  entire  strength  of  the  nation  may  be  used  to  enforce  in  any 
part  of  the  land  the  full  and  free  exercise  of  all  national  powers 
and  the  security  of  all  rights  entrusted  by  the  Constitution  to 
its  care.  The  strong  arm  of  the  national  government  may  be 
put  forth  to  brush  aw'ay  all  obstructions  to  the  freedom  of  inter- 
state commerce  or  the  transportation  of  the  mails.  If  the  emer- 
gency arises,  the  army  of  the  Nation,  and  all  its  militia,  are  at 
the  service  of  the  Nation  to  compel  obedience  to  its  laws. 

But  passing  to  the  second  question,  is  there  no  other  alterna- 
tive than  the  use  of  force  on  the  part  of  the  executive  authorities 
whenever  obstructions  arise  to  the  freedom  of  interstate  com- 
merce or  the  transportation  of  the  mails?  Is  the  army  the  only 
instrument  by  which  rights  of  the  public  can  be  enforced  and 
the  peace  of  the  nation  preserved?  Grant  that  any  public 
nuisance  may  be  forcibly  abated  either  at  the  instance  of  the 
authorities,  or  by  any  individual  suffering  private  damage  there- 
from, the  existence  of  this  right  of  forcible  abatement  is  not 
inconsistent  with  nor  does  it  destroy  the  right  of  appeal  in  an 
orderly  way  to  the  courts  for  a  judicial  determination,  and  an 
exercise  of  their  powers  by  writ  of  injunction  and  otherwise  to 
accomplish  the  same  result.  .  .  . 

So,  in  the  case  before  us,  the  right  to  use  force  does  not  ex- 
clude the  right  of  appeal  to  the  courts  for  a  judicial  determina- 
tion and  for  the  exercise  of  all  their  powers  of  prevention.  In- 
deed, it  is  more  to  the  praise  than  to  the  blame  of  the  go-, 
ment,  that,  instead  of  determining  for  itself  questions  of  right 
and  wrong  on  the  part  of  these  petitioners  and  their  associates 
and  enforcing  that  determination  by  the  club  of  the  policeman 
and  the  bayonet  of  the  soldier,  it  submitted  all  those  questions 
to  the  peaceful  determination  of  judicial  tribunals,  and  invoked 
their  consideration  and  judgment  as  to  the  measure  of  its  rights 


304  CASES  ON  CONSTITUTIONAL  LAW. 

and  powers  and  the  correlative  obligations  of  those  against 
whom  it  made  complaint.  And  it  is  equally  to  the  credit  of  the 
latter  that  the  judgment  of  those  tribunals  was  by  the  great 
body  of  them  respected,  and  the  troubles  which  threatened  so 
much  disaster  terminated. 

Neither  can  it  be  doubted  that  the  government  has  such  an 
interest  in  the  subject-matter  as  enables  it  to  appear  as  party 
plaintiff  in  this  suit.  It  is  said  that  equity  only  interferes  for 
the  protection  of  property,  and  that  the  government  has  no 
property  interest.  A  sufficient  reply  is  that  the  United  States 
have  a  property  in  the  mails,  the  protection  of  which  was  one 
of  the  purposes  of  this  bill.  ... 

We  do  not  care  to  place  our  decision  upon  this  ground  alone. 
Every  government,  entrusted,  by  the  very  terms  of  its  being, 
with  powers  and  duties  to  be  exercised  and  discharged  for  the 
general  welfare,  has  a  right  to  apply  to  its  own  courts  for  any 
proper  assistance  in  the  exercise  of  the  one  and  the  discharge 
of  the  other,  and  it  is  no  sufficient  answer  to  its  appeal  to  one 
of  those  courts  that  it  has  no  pecuniary  interest  in  the  matter. 
The  obligation  which  it  is  under  to  promote  the  interest  of  all, 
and  to  prevent  the  wrongdoing  of  one  resulting  in  injury  to 
the  general  welfare,  is  often  of  itself  sufficient  to  give  it  stand- 
ing in  the  court.  [Here  follows  a  discussion  of  United  States  v. 
San  Jacinto  Tin  Co.,  125  U.  S.  273,  285,  and  United  States  v. 
Bell  Telephone  Company,  128  U.  S.  315,  367.] 

It  is  obvious  from  these  decisions  that  while  it  is  not  the  prov- 
ince of  the  government  to  interfere  in  any  mere  matter  of  pri- 
vate controversy  between  individuals,  or  to  use  its  great  powers 
to  enforce  the  rights  of  one  against  another,  yet,  whenever  the 
wrongs  complained  of  are  such  as  affect  the  public  at  large,  and 
are  in  respect  of  matters  which  by  the  Constitution  are  entrusted 
to  the  care  of  the  Nation,  and  concerning  which  the  Nation  owes 
the  duty  to  all  the  citizens  of  securing  to  them  their  common 
rights,  then  the  mere  fact  that  the  government  has  no  pecuniary 
interest  in  the  controversy  is  not  sufficient  to  exclude  it  from 
the  courts,  or  prevent  it  from  taking  measures  therein  to  fully 
discharge  those  constitutional  duties. 

The  national  government,  given  by  the  Constitution  power  to 
regulate  interstate  commerce,  has  by  express  statute  assumed 
jurisdiction  over  such  commerce  when  carried  upon  railroads. 
It  is  charged,  therefore,  with  the  duty  of  keeping  those  high- 
ways of  interstate  commerce  free  from  obstruction,  for  it  has 
always  been  recognized  as  one  of  the  powers  and  duties  of  a 


IN   K1-:  UKBS.  305 

government  to  remove  obstructions  from  the  highway  under  its 
control.    .     .     . 

It  is  said  that  the  jurisdiction  heretofore  exercised  by  the 
national  government  over  highways  has  been  in  respect  to  water- 
ways— the  natural  highways  of  the  country — and  not  over  arti- 
ficial highways  such  as  railroads;  but  the  occasion  for  the 
cise  by  Congress  of  its  jurisdiction  over  the  latter  is  of  re.-.-nt 
date.  Perhaps  the  first  act  in  the  course  of  such  legislation  is 
that  heretofore  referred  to,  of  June  14,  1866,  but  the  basis  upon 
which  rests  its  jurisdiction  over  artificial  highways  is  the  same 
as  th.it  which  supports  it^over  the  natural  highways.  Both  spring 
from  the  power  to  regulate  commerce.  The  national  government 
has  no  separate  dominion  over  a  river  within  the  limits  of  a 
State;  its  jurisdiction  there  is  like  that  over  land  in  the  same 
State.  Its  control  over  the  river  is  simply  by  virtue  of  the  fact 
that  it  is  one  of  the  highways  of  interstate  and  international 
commerce.  The  great  case  of  Gibbons  v.  Ogden,  9  Wheat.  1,  197, 
in  which  the  control  of  Congress  over  inland  waters  was  asserted, 
rested  that  control  on  the  grant  of  the  power  to  regulate  com- 
merce. .  .  . 

See  also  Oilman  v.  Philadelphia,  3  Wall.  713,  725,  in  which 
it  was  said:  "Wherever  'commerce  among  the  States'  goes,  the 
power  of  the  nation,  as  represented  in  this  court,  goes  with  it 
to  protect  and  enforce  its  rights." 

Up  to  a  recent  date  commerce,  both  interstate  and  international, 
was  mainly  by  water,  and  it  is  not  strange  that  both  the  legisla* 
tion  of  Congress  and  the  cases  in  the  courts  have  been  princi- 
pally concerned  therewith.  The  fact  that  in  recent  years  inter- 
state commerce  has  come  mainly  to  be  carried  on  by  railroads 
and  over  artificial  highways  has  in  no  manner  narrowed  the 
scope  of  the  constitutional  provision,  or  abridged  the  power  of 
Congress  over  such  commerce.  On  the  contrary,  the  same  full- 
ness  of  control  exists  in  the  one  case  as  in  the  other,  and  the 
same  power  to  remove  obstructions  from  the  one  as  from  the 
other. 

Constitutional  provisions  do  not  change,  but  their  operation 
extends  to  new  matters  as  the  modes  of  business  and  the  habits 
of  life  of  the  people  vary  with  each  succeeding  generation.  The 
law  of  the  common  carrier  is  the  same  today  as  when  transpor- 
tation on  land  was  by  coach  and  wagon,  and  on  water  by  eanal 
boat  and  sailing  vessel,  yet  in  its  actual  operation  it  touches  and 
regulates  transportation  by  modes  then  unknown,  the  railroad 
train  and  the  steamship.  Just  so  is  it  with  the  grant  to  the 

B.CL.-M 


306  CASES  ON  CONSTITUTIONAL  LAW. 

national  government  of  power  over  interstate  commerce.  The 
Constitution  has  not  changed.  The  power  is  the  same.  But  it 
operates  today  upon  modes  of  interstate  commerce  unknown  to 
the  fathers,  and  it  will  operate  with  equal  force  upon  any  new 
modes  of  such  commerce  which  the  future  may  develop.  .  .  . 
The  petition  for  a  writ  of  habeas  corpus  is 

Denied. 


HOUSTON,  EAST  AND  WEST  TEXAS  RAILWAY  CO.  v. 
UNITED  STATES. 

TEXAS  AND  PACIFIC  RAILWAY  CO.  v.  UNITED  STATES. 

[THE  SHREVEPORT  CASE.] 

SUPREME  COURT  OP  THE  UNITED  STATES.     1914^ 
234  U.  S.  342;  58  Lawyers'  Ed.  1341. 

Appeals  from  the  Commerce  Court. 

[Complaint  was  made  to  the  Interstate  Commerce  Commission 
that  a  carrier  operating  between  Dallas,  Texas,  and  Shreveport, 
Louisiana,  made  rates  eastward  from  Dallas  to  other  Texas 
points  much  lower  than  the  rates  from  Shreveport  to  those  points, 
although  the  distance  from  Shreveport  might  be  considerably 
less.  For  instance,  the  rate  on  wagons  from  Dallas  to  Marshall, 
Texas,  a  distance  of  147.7  miles,  was  36.8  cents,  while  from 
Shreveport  to  Marshall,  a  distance  of  42  miles,  it  was  56  cents. 
The  Commission  had  already  declared  the  interstate  rates  from 
Shreveport  to  be  reasonable,  but  in  order  to  correct  the  discrim- 
ination against  Shreveport  "growing  out  of  the  lower  rates  be- 
tween Texas  points,  the  Commission  ordered  the  carriers  to  charge 
no  higher  rate  from  Shreveport  to  Dallas  or  any  intermediate 
points  than  it  charged  from  Dallas  toward  Shreveport  for  an 
equal  distance.  The  railways  refused  to  comply  on  the  ground 
that  their  rates  between  Texas  points  were  fixed  by  the  Texas 
Railway  Commission  and  that  the  Interstate  Commerce  Com- 
mission could  have  no  jurisdiction  over  them.  The  action  of  the 
Commission  having  been  sustained  by  the  Commerce  Court  (205 
Fed.  Rep.  380),  the  railways  appealed.] 

MR.  JUSTICE  HUGHES  delivered  the  opinion  of  the  court.    .    .    . 
The  point  of  the  objection  to  the  order  is  that,  as  the  discrimi- 
nation found  by  the  Commission  to  be  unjust  arises  out  of  the 


HOUSTON,  E.  &  W.  TEXAS  RY.  CO.  v.  U.  S.      307 

relation  of  intrastate  rates,  maintained  under  state  authority, 
to  interstate  rates  that  have  been  upheld  as  reasonable,  its  cor- 
rection was  beyond  the  Commission's  power.  Manifestly,  the 
order  might  be  complied  with,  and  the  discrimination  avoided, 
either  by  reducing  the  interstate  rates  from  Shreveport  to  the 
level  of  the  competing  intrastate  rates,  or  by  raising  these  intra- 
state rates  to  the  level  of  the  interstate  rates,  or  by  such  reduc- 
tion in  the  one  case  and  increase  in  the  other  as  would  result 
in  equality.  But  it  is  urged  that,  so  far  as  the  interstate  rates 
were  sustained  by  the  Commission  as  reasonable,  the  Commis- 
sion was  without  authority  to  compel  their  reduction  in  order 
to  equalize  them  with  the  lower  intrastate  rates.  The  holding 
of  the  Commerce  Court  was  that  the  order  relieved  the  appel- 
lants from  further  obligation  to  observe  the  intrastate  rates  and 
that  they  were  at  liberty  to  comply  with  the  Commission's  re- 
quirements by  increasing  these  rates  sufficiently  to  remove  the 
forbidden  discrimination.  The  invalidity  of  the  order  in  this 
aspect  is  challenged  upon  two  grounds: 

(1)  That  Congress  is  impotent  to  control  the  intrastate  charges 
of  an  interstate  carrier  even  to  the  extent  necessary  to  prevent 
injurious  discrimination  against  interstate  traffic;  and 

(2)  That,  if  it  be  assumed  that  Congress  has  this  power,  still 
it  has  not  been  exercised,  and  hence  the  action  of  the  Commis- 
sion exceeded  the  limits  of  the  authority  which  has  been  con- 
ferred upon  it 

First.  It  is  unnecessary  to  repeat  what  has  frequently  been 
said  by  this  court  with  respect  to  the  complete  and  paramount 
character  of  the  power  confided  to  Congress  to  regulate  com- 
merce among  the  several  States.  It  is  of  the  essence  of  this  power 
that,  where  it  exists,  it  dominates.  Interstate  trade  was  not  left 
to  be  destroyed  or  impeded  by  the  rivalries  of  local  governments. 
The  purpose  was  to  make  impossible  the  recurrence  of  the  evils 
which  had  overwhelmed  the  Confederation  and  to  provide  the 
necessary  basis  of  national  unity  by  insuring  "uniformity  of 
regulation  against  conflicting  and  discriminating  state  legisla- 
tion." By  virtue  of  the  comprehensive  terms  of  the  grant,  the 
authority  of  Congress  is  at  all  times  adequate  to  meet  the  vary- 
ing exigencies  that  arise  and  to  protect  the  national  interest  by 
securing  the  freedom  of  interstate  commercial  intercourse  from 
locaji  control.  Gibbons  v.  Ogden,  9  Wheat.  1,  196,  224;  Brown 
v.  Maryland,  12  Wheat.  419,  446;  County  of  Mobil.-  v.  Kimhall. 
102  U.  S.  691,  696,  697;  Smith  v.  Alabama,  124  U.  S.  465,  473; 


308  CASES  ON  CONSTITUTIONAL  LAW. 

Second  Employers'  Liability  Cases,  223  U.  S.  1,  47,  53,  54;  Min- 
nesota Rate  Cases,  230  U.  S.  352,  398,  399. 

Congress  is  empowered  to  regulate, — that  is,  to  provide  the  law 
for  the  government  of  interstate  commerce ;  to  enact  ' '  all  appro- 
priate legislation"  for  its  "protection  and  advancement."  (The 
Daniel  Ball,  10  Wall.  557,  564)  ;  to  adopt  measures  "to  promote 
its  growth  and  insure  its  safety"  (County  of  Mobile  v.  Kimball, 
supra) ;  "to  foster,  protect,  control  and  restrain"  (Second  Em- 
ployers' Liability  Cases,  supra).  Its  authority,  extending  to 
these  interstate  carriers  as  instruments  of  interstate  commerce, 
necessarily  embraces  the  right  to  control  their  operations  in  all 
matters  having  such  a  close  and  substantial  relation  to  inter- 
state traffic  that  the  control  is  essential  or  appropriate  to  the 
security  of  that  traffic,  to  the  efficiency  of  the  interstate  service, 
and  to  the  maintenance  of  conditions  under  which  interstate, 
commerce  may  be  conducted  upon  fair  terms  and  without  mo- 
lestation or  hindrance.  As  it  is  competent  for  Congress  to  legis- 
late to  these  ends,  unquestionably  it  may  seek  their  attainment 
by  requiring  that  the  agencies  of  interstate  commerce  shall  not 
be  used  in  such  manner  as  to  cripple,  retard  or  destroy  it.  The 
fact  that  carriers  are  instruments  of  intrastate  commerce,  as 
well  as  of  interstate  commerce,  does  not  derogate  from  the  com- 
plete and  paramount  authority  of  Congress  over  the  latter  or  pre- 
clude the  Federal  power  from  being  exerted  to  prevent  the  in- 
trastate operations  of  such  carriers  from  being  made  a  means 
of  injury  to  that  which  has  been  confided  to  Federal  care. 
Wherever  the  interstate  and  intrastate  transactions  of  carriers 
are  so  related  that  the  government  of  the  one  involves  the  con- 
trol of  the  other,  it  is  Congress,  and  not  the  State,  that  is  en- 
titled to  prescribe  the  final  and  dominant  rule,  for  otherwise 
Congress  would  be  denied  the  exercise  of  its  constitutional  au- 
thority, and  the  State,  and  not  the  Nation,  would  be  supreme 
within  the  national  field.  Baltimore  &  Ohio  Railroad  Co.  v. 
Interstate  Commerce  Commission,  221  U.  S.  612,  618;  Southern 
Railway  Co.  v.  United  States,  222  U.  S.  20,  26,  27;  Second  Enf- 
ployers'  Liability  Cases,  supra,  pp.  48,  51 ;  Interstate  Commerce 
Commission  v.  Goodrich  Transit  Co.,  224  U.  S.  194,  205,  213 ; 
Minnesota  Rate  Cases,  supra,  p.  431;  Illinois  Central  Railroad 
Co.  v.  Behrens,  233  U.  S.  473.  .  v.  . 

While  these  decisions  sustaining  the  Federal  power  relate  to 
measures  adopted  in  the  interest  of  the  safety  of  persons  and 
property,  they  illustrate  the  principle  that  Congress  in  the  exer- 
cise of  its  paramount  power  may  prevent  the  common  instru- 


HOUSTON,  E.  &  W.  TEXAS  RY.  CO.  v.  U.  S.      309 

mentalities  of  Interstate  and  intrastate  commercial  intercourse 
from  being  used  in  their  intrastate  operations  to  the  injury  of 
int.-rstate  commerce.  This  is  not  to  say  that  Congress  possesses 
the  authority  to  regulate  the  internal  commerce  of  a  State,  M 
such,  but  that  it  does  possess  the  power  to  foster  and  protect 
interstate  commerce,  and  to  take  all  measures  necessary  or  ap- 
propriate to  that  end,  although  intrastate  transactions  of  inter- 
state carriers  may  thereby  be  controlled. 

This  principle  is  applicable  here.  We  find  no  reason  to  doubt 
that  Congress  is  entitled  to  keep  the  highways  of  interstate 
communication  open  to  interstate  traffic  upon  fair  and  equal 
terms.  That  an  unjust  discrimination  in  the  rates  of  a  common 
carrier,  by  which  one  person  or  locality  is  unduly  favored  as 
against  another  under  substantially  similar  conditions  of  traf- 
fic, constitutes  an  evil  is  undeniable;  and  where  this  evil  con- 
sists in  the  action  of  an  interstate  carrier  in  unreasonably  dis- 
criminating against  interstate  traffic  over  its  line,  the  authority 
of  Congress  to  prevent  it  is  equally  clear.  It  is  immaterial,  so 
far  as  the  protecting  power  of  Congress  is  concerned,  that  the 
discrimination  arises  from  intrastate  rates  as  compared  with 
interstate  rates.  The  use  of  the  instrument  of  interstate  com- 
merce in  a  discriminatory  manner  so  as  to  inflict  injury  upon 
that  commerce,  or  some  part  thereof,  furnishes  abundant  ground 
for  Federal  intervention.  Nor  can  the  attempted  exercise  of 
state  authority  alter  the  matter,  where  Congress  has  acted,  for  a 
State  may  not  authorize  a  carrier  to  do  that  which  Congress  is 
entitled  to  forbid  and  has  forbidden. 

It  is  also  to  be  noted — as  the  Government  has  well  said  in  its 
argument  in  support  of  the  Commission 's  order — that  the  power 
to  deal  with  the  relation  between  the  two  kinds  of  rates,  as  a 
r.-lation,  lies  exclusively  with  Congress.  It  is  manifest  that  the 
States  cannot  fix  the  relation  of  the  carriers  interstate  and  intra- 
state charges  without  directly  interfering  with  the  former,  un- 
less it  simply  follows  the  standard  set  by  Federal  authority. 
.  .  .  It  is  for  Congress  to  supply  the  needed  correction 
where  the  relation  between  interstate  and  intrastate  rates  pre- 
Hu>  evil  to  be  corrected,  and  this  it  may  do  completely  by 
reason  of  its  control  over  the  interstate  carrier  in  all  ma 
having  such  a  close  and  substantial  relation  to  interstate  com- 
merce that  it  is  necessary  or  appropriate  to  exercise  the  con- 
trol for  the  effective  government  of  that  commerce. 

It  is  also  clear  that,  in  removing  the  injurious  diseriminat 
against  interstate  traffic  arising  from  the  relation  of  intrastate 


310  CASES  ON  CONSTITUTIONAL  LAW. 

to  interstate  rates,  Congress  is  not  bound  to  reduce  the  latter 
below  what  it  may  deem  to  be  a  proper  standard  fair  to  the 
carrier  and  to  the  public.  Otherwise,  it  could  prevent  the  in- 
jury to  interstate  commerce  only  by  the  sacrifice  of  its  judgment 
as  to  interstate  rates.  Congress  is  entitled  to  maintain  its  own 
standard  as  to  these  rates  and  to  forbid  any  discriminatory 
action  by  interstate  carriers  which  will  obstruct  the  freedom  of 
movement  of  interstate  traffic  over  their  lines  in  accordance 
with  the  terms  it  establishes. 

Having  this  power,  Congress  could  provide  for  its  execution 
through  the  aid  of  a  subordinate  body;  and  we  conclude  that 
the  order  of  the  Commission  now  in  question  cannot  be  held 
invalid  upon  the  ground  that  it  exceeded  the  authority  which 
Congress  could  lawfully  confer.  .  .  . 

Affirmed. 

MR.  JUSTICE  LURTON  and  MR.  JUSTICE  PITNEY  dissent. 

NOTE. — As  to  the  jurisdiction  of  Congress  over  commerce  between  points 
in  the  same  State  which  at  some  intermediate  stage  passes  outside  the  State, 
see  Lord  v.  Steamship  Co.  (1880),  102  U.  S.  541,  and  Wilmington  Trans- 
portation Co.  v.  California  Eailroad  Commission  (1915),  236  TJ.  S.  151 
(navigation  on  the  high  seas  between  two  ports  in  California),  and  Hanley 
v.  Kansas  City  Southern  Ry.  (1903),  187  U.  S.  617  (transportation  between 
two  points  in  Arkansas  by  a  line  of  railroad  which  passed  outside  the 
State). 


SECTION  3.    WHAT  is  A  REGULATION  OF  COMMERCE. 

THE  ADDYSTONE  PIPE  &  STEEL  COMPANY  v.  UNITED 

STATES. 

SUPREME  COURT  OP  THE  UNITED  STATES.     1899. 
175  U.  S.  211;  44  Lawyers'  Ed.  136. 

Appeal  from  the  Court  of  Appeals  for  the  Sixth  Circuit. 

This  proceeding  was  commenced  in  behalf  of  the  United  States, 
under  the  so-called  anti-trust  act  of  Congress,  of  July  2,  1890, 
c.  647,  26  Stat.  209,  ...  for  the  purpose  of  obtaining  an 
injunction  perpetually  enjoining  the  six  corporations,  who  were 
made  defendants,  and  who  were  engaged  in  the  manufacture, 
sale  and  transportation  of  iron  pipe  at  their  respective  places  of 
business  in  the  States  of  their  residence,  from  further  acting 
under  or  carrying  on  the  combination  alleged  in  the  petition  to 


ADDYSTONE  PIPE  &  STEEL  CO.  v.  U.  S.         311 

have  been  entered  into  between  them,  and  which  was  stated  to 
be  an  illegal  and  unlawful  one,  under  the  act  above  mentioned, 
because  it  was  in  restraint  of  trade  and  commerce  among  the 
States,  etc.  .  .  . 

MR.  JUSTICE  PECKHAM  .  .  .  delivered  the  opinion  of  the 
court.  .  .  . 

Assuming,  for  the  purpose  of  the  argument,  that  the  contract 
in  question  herein  does  directly  and  substantially  operate  as  a 
restraint  upon  and  as  a  regulation  of  interstate  commerce,  it  is 
yet  insisted  by  the  appellants  at  the  threshold  of  the  inquiry 
that  by  the  true  construction  of  the  Constitution,  the  power  of 
Congress  to  regulate  interstate  commerce  is  limited  to  its  pro- 
tection from  acts  of  interference  by  state  legislation  or  by 
means  of  regulations  made  under  the  authority  of  the  State  by 
some  political  subdivision  thereof,  including  also  Congressional 
power  over  common  carriers,  elevator,  gas  and  water  compa- 
nies, for  reasons  stated  to  be  peculiar  to  such  carriers  and  com- 
panies, but  that  it  does  not  include  the  general  power  to  inter- 
fere with  or  prohibit  private  contracts  between  citizens,  even 
though  such  contracts  have  interstate  commerce  for  their  object, 
and  result  in  a  direct  and  substantial  obstruction  to  or  regula- 
tion of  that  commerce. 

This  argument  is  founded  upon  the  assertion  that  the  reason 
for  vesting  in  Congress  the  power  to  regulate  commerce  was  to 
insure  uniformity  of  regulation  against  conflicting  and  discrimi- 
nating state  legislation ;  and  the  further  assertion  that  the  Con- 
stitution guarantees  liberty  of  private  contract  to  the  citizen  at 
least  upon  commercial  subjects,  and  to  that  extent  the  guaranty 
operates  as  a  limitation  on  the  power  of  Congress  to  regulate 
commerce.  Some  remarks  are  quoted  from  the  opinions  of  Chief 
Justice  Marshall  .  .  .  and  from  the  opinions  of  other  jus- 
tices of  this  court,  ...  all  of  which  are  to  the  effect  that 
the  object  of  vesting  in  Congress  the  power  to  regulate  inter- 
state commerce  was  to  insure  uniformity  of  regulation  against 
conflicting  and  discriminating  state  legislation.  The  further 
remark  is  quoted  from  Railroad  Company  v.  Richmond,  19  Wall. 
584,  that  the  power  of  Congress  to  regulate  commerce  was  never 
intended  to  be  exercised  so  as  to  interfere  with  private  contracts 
not  designed  at  the  time  they  were  made  to  create  impediments 
t6  such  commerce.  .  .  . 

The  reasons  which  may  have  caused  the  framers  of  the  Con- 
stitution to  repose  the  power  to  regulate  interstate  commerce  in 


312  CASES  ON  CONSTITUTIONAL  LAW. 

Congress  do  not,  however,  affect  or  limit  the  extent  of  the  power 
itself.  .  .  . 

Under  this  grant  of  power  to  Congress,  that  body,  in  our  judg- 
ment, may  enact  such  legislation  as  shall  declare  void  and  pro- 
hibit the  performance  of  any  contract  between  individuals  or 
corporations  where  the  natural  and  direct  effect  of  such  a  con- 
tract will  be,  when  carried  out,  to  directly,  and  not  as  a  mere 
incident  to  other  and  innocent  purposes,  regulate  to  any  sub- 
stantial extent  interstate  commerce.  (And  when  we  speak  of 
interstate  we  also  include  in  our  meaning  foreign  commerce.) 
We  do  not  assent  to  the  correctness  of  the  proposition  that  the 
constitutional  guaranty  of  liberty  to  the  individual  to  enter  into 
private  contracts  limits  the  power  of  Congress  and  prevents  it 
from  legislating  upon  the  subject  of  contracts  of  the  class  men- 
tioned. 

The  power  to  regulate  interstate  commerce  is,  as  stated  by 
Chief  Justice  Marshall,  full  and  complete  in  Congress,  and 
there  is  no  limitation  in  the  grant  of  the  power  which  excludes 
private  contracts  of  the  nature  in  question  from  the  jurisdiction 
of  that  body.  Nor  is  any  such  limitation  contained  in  that  other 
clause  of  the  Constitution,  which  provides  that  no  person  shall 
be  deprived  of  life,  liberty  or  property  without  due  process  of 
law.  It  has  been  held  that  the  word  "liberty,"  as  used  in  the 
Constitution,  was  not  to  be  confined  to  the  mere  liberty  of  per- 
son, but  included,  among  others,  a  right  to  enter  into  certain 
classes  of  contracts  for  the  purpose  of  enabling  the  citizen  to 
carry  on  his  business.  Allgeyer  v.  Louisiana,  165  U.  S.  578; 
United  States  v.  Joint  Traffic  Association,  171  U.  S.  505,  572. 
But  it  has  never  been,  and  in  our  opinion  ought  not  to  be,  held 
that  the  word  included  the  right  of  an  individual  to  enter  into 
private  contracts  upon  all  subjects,  no  matter  what  their  nature 
and  wholly  irrespective  (among  other  things)  of  the  fact  that 
they  would,  if  performed,  result  in  the  regulation  of  interstate 
commerce  and  in  the  violation  of  an  act  of  Congress  upon  that 
subject.  The  provision  in  the  Constitution  does  not,  as  we  be- 
lieve, exclude  Congress  from  legislating  with  regard  to  contracts 
of  the  above  nature  while  in  the  exercise  of  its  constitutional 
right  to  regulate  commerce  among  the  States.  On  the  contrary, 
we  think  the  provision  regarding  the  liberty  of  the  citizen  is, 
to  some  extent,  limited  by  the  commerce  clause  of  the  Constitu- 
tion, and  that  the  power  of  Congress  to  regulate  interstate  com- 
merce comprises  the  right  to  enact  a  law  prohibiting  the  citizen 
from  entering  into  those  private  contracts  which  directly  and 


CHAMPION  v.  AMES.  313 

substantially,  and  not  merely  imiireetly.  remotely,  incidentally 
and  collaterally,  regulate  to  a  greater  or  leas  degree  commerce 
among  the  States.  .  .  . 

The  private  contracts  may  in  truth  be  as  far  reaching  in  th.-ir 
effect  upon  interstate  commerce  as  would  the  legislation  of  a 
single  State  of  the  same  character.  .  .  . 

What  sound  reason  can  be  given  why  Congress  should  have 
the  power  to  interfere  in  the  case  of  the  State,  and  yet  have 
none  in  the  case  of  the  individual  f  Commerce  is  the  important 
subject  of  consideration,  and  anything  which  directly  obstructs 
and  thus  regulates  that  commerce  which  is  carried  on  among 
the  States,  whether  it  is  state  legislation  or  private  contracts 
between  individuals  or  corporations,  should  be  subject  to  the 
power  of  Congress  in  the  regulation  of  that  commerce.  .  .  . 

To  the  extent  that  the  present  decree  includes  in  its  scope 
the  enjoining  of  defendants  .  .  .  from  combining  in  regard 
to  contracts  for  selling  pipe  in  their  own  State,  it  is  moditi.-ti, 
and  limited  to  that  portion  of  the  combination  or  agreement 
which  is  interstate  in  its  character.  As  thus  modified,  the  de- 
cree is  Affirmed. 


LOTTERY  CASE. 
CHAMPION  v.  AMES. 

SUPREME  COUBT  or  THE  UNITED  STATES.    1903. 
188  U.  8.  321;  47  Lawyers'  Ed.  492. 

Appeal  from  the  Circuit  Court  of  the  United  States  for  the 
Northern  District  of  Illinois. 

[By  an  act  of  Congress  of  March  2,  1895,  entitled  "An  act  for 
the  suppression  of  lottery  traffic  through  national  and  inter 
state  commerce  and  the  postal  service  subject  to  the  jurisdiction 
and  laws  of  the  United  States,"  it  was  provided  "That  any 
person  who  shall  cause  to  be  brought  within  the  United  States 
from  abroad,  for  the  purpose  of  disposing  of  the  same,  or  depo 
sit.  ,1  in  or  carried  by  the  mails  of  the  United  States,  or  carried 
from  one  State  to  another  in  the  I'nited  States,  any  paper,  cer- 
tificate, or  instrument  purporting  to  be  or  represent  a  ticket, 
chance,  share,  or  interest  in  or  dependent  upon  the  event  of  a 
lottery,  so-called   gift  concert,   or  similar  enterprise,  off. 
prifces  dependent  upon  lot  or  chance,  or  shall  cause  any  adver- 
nent  of  such  lottery,  so-called  gift  concert  or  similar  ent«-r- 
prises,   offering  prizes  dependent  upon   lot  or  chance,  to  be 


314  CASES  ON  CONSTITUTIONAL  LAW. 

brought  into  the  United  States,  or  deposited  in  or  carried  by  the 
mails  of  the  United  States,  or  transferred  from  one  State  to 
another  in  the  same,  shall  be  punishable  in  [for]  the  first 
offense  by  imprisonment  for  not  more  than  two  years,  or  by  a 
fine  of  not  more  than  one  thousand  dollars,  or  both,  and  in  the 
second  and  after  offenses  by  such  imprisonment  only."  W.  F. 
Champion  was  arrested  in  Chicago  and  held  for  trial  in  the 
District  Court  of  the  Northern  District  of  Texas  for  having 
deposited  with  the  Wells-Fargo  Express  Company  for  trans- 
mission from  Dallas,  Texas,  to  Fresno,  California,  a  package 
containing  lottery  tickets  issued  by  the  Pan-American  Lottery 
Company.  Whereupon  he  sued  out  a  writ  of  habeas  corpus  upon 
the  theory  that  the  act  of  1895,  under  which  it  was  proposed  to 
try  him,  was  unconstitutional  and  void.] 

ME.  JUSTICE  HARLAN  delivered  the  opinion  of  the  court.    .    .    . 

We  are  of  opinion  that  lottery  tickets  are  subjects  of  traffic, 
and  therefore  are  subjects  of  commerce,  and  the  regulation  of 
the  carriage  of  such  tickets  from  State  to  State,  at  least  by  inde- 
pendent carriers,  is  a  regulation  of  commerce  among  the  several 
States. 

But  it  is  said  that  the  statute  in  question  does  not  regulate  the 
carrying  of  lottery  tickets  from  State  to  State,  but  by  punishing 
those  who  cause  them  to  be  so  carried  Congress  in  effect  prohibits 
such  carrying ;  that  in  respect  of  the  carrying  from  one  State  to 
another  of  articles  or  things  that  are,  in  fact,  or  according  to 
usage  in  business,  the  subjects  of  commerce,  the  authority  given 
Congress  was  not  to  prohibit,  but  only  to  regulate.  This  view 
was  earnestly  pressed  at  the  bar  by  learned  counsel,  and  must 
be  examined. 

It  is  to  be  remarked  that  the  Constitution  does  not  define  what 
is  to  be  deemed  a  legitimate  regulation  of  interstate  commerce. 
In  Gibbons  v.  Ogden  it  was  said  that  the  power  to  regulate  such 
commerce  is  the  power  to  prescribe  the  rule  by  which  it  is  to  be 
governed.  But  this  general  observation  leaves  it  to  be  deter- 
mined, when  the  question  comes  before  the  court,  whether  Con- 
gress in  prescribing  a  particular  rule,  has  exceeded  its  power 
under  the  Constitution.  .  .  . 

We  have  said  that  the  carrying  from  State  to  State  of  lottery 
tickets  constitutes  interstate  commerce,  and  that  the  regulation 
of  such  commerce  is  within  the  power  of  Congress  under  the  Con- 
stitution. Are  we  prepared  to  say  that  a  provision  which  is,  in 
effect,  a  prohibition  of  the  carriage  of  such  articles  from  State  to 


(  II  A.MPION  v.  AMES.  315 

State  is  not  a  fit  or  appropriate  mode  for  the  regulation  of  that 
particular  kind  of  commerce?  If  lottery  traffic,  carried  on 
through  interstate  commerce,  is  a  matter  of  which  Congress  may 
take  cognizance  and  over  which  its  power  may  be  exerted,  can  it 
be  possible  that  it  must  tolerate  the  traffic,  and  simply  regulate 
the  manner  in  which  it  may  be  carried  on?  Or  may  not  Con- 
gress, for  the  protection  of  the  people  of  all  the  States,  and 
under  the  power  to  regulate  interstate  commerce,  devise  such 
means,  within  the  scope  of  the  Constitution,  and  not  prohibited 
by  it,  as  will  drive  that  traffic  out  of  commerce  among  the 
States? 

In  determining  whether  regulation  may  not  under  some  cir- 
cumstances properly  take  the  form  or  have  the  effect  of  pro- 
hibition, the  nature  of  the  interstate  traffic  which  it  was  sought 
by  the  act  of  May  2,  1895,  to  suppress  cannot  be  overlooked. 
When  enacting  that  statute  Congress  no  doubt  shared  the  views 
upon  the  subject  of  lotteries  heretofore  expressed  by  this  court. 
In  Phalen  v.  Virginia,  8  How.  163,  168,  after  observing  that  the 
suppression  of  nuisances  injurious  to  public  health  or  morality  is 
among  the  most  important  duties  of  government,  this  court  said : 
"Experience  has  shown  that  the  common  forms  of  gambling  are 
comparatively  innocuous  when  placed  in  contrast  with  the  wide- 
spread pestilence  of  lotteries.  The  former  are  confined  to  a  few 
persons  and  places,  but  the  latter  infests  the  whole  community ; 
it  enters  every  dwelling;  it  reaches  every  class;  it  preys  upon 
the  hard  earnings  of  the  poor ;  it  plunders  the  ignorant  and  sim- 
ple."  In  other  cases  we  have  adjudged  that  authority  given 
by  legislative  enactment  to  carry  on  a  lottery,  although  based 
upon  a  consideration  in  money,  was  not  protected  by  the  contract 
clause  of  the  Constitution ;  this,  for  the  reason  that  no  State  may 
bargain  away  its  power  to  protect  the  public  morals,  nor  excuse 
its  failure  to  perform  a  public  duty  by  saying  that  it  had  agreed, 
by  legislative  enactment,  not  to  do  so.  Stone  v.  Mississippi,  101 
U.  S.  814;  Douglas  v.  Kentucky,  168  U.  S.  488. 

If  a  State,  when  considering  legislation  for  the  suppression  of 
lotteries  within  its  own  limits,  may  properly  take  into  view  the 
evils  that  inhere  in  the  raising  of  money,  in  that  mode,  why  may 
not  Congress,  invested  with  the  power  to  regulate  commerce 
among  the  several  States,  provide  that  such  commerce  shall  not 
be  polluted  by  the  carrying  of  lottery  tickets  from  one  State  to 
another?  In  this  connection  it  must  not  be  forgotten  that  the 
power  of  Congress  to  regulate  commerce  among  the  States  is 
plenary,  is  complete  in  itself,  and  is  subject  to  no  limitations 


316  CASES  ON  CONSTITUTIONAL  LAW. 

except  such  as  may  be  found  in  the  Constitution.  What  pro- 
vision in  that  instrument  can  be  regarded  as  limiting  the  exer- 
cise of  the  power  granted  ?  What  clause  can  be  cited  which,  in 
any  degree,  countenances  the  suggestion  that  one  may,  of  right, 
carry  or  cause  to  be  carried  from  one  State  to  another  that  which 
will  harm  the  public  morals  ?  We  cannot  think  of  any  clause  of 
that  instrument  that  could  possibly  be  invoked  by  those  who 
assert  their  right  to  send  lottery  tickets  from  State  to  State 
except  the  one  providing  that  no  person  shall  be  deprived  of  his 
liberty  without  due  process  of  law.  We  have  said  that  the  libr 
erty  protected  by  the  Constitution  embraces  the  right  to  be  free 
in  the  enjoyment  of  one's  faculties;  "to  be  free  to  use  them  in  all 
lawful  ways ;  to  live  and  work  where  he  will ;  to  earn  his  liveli- 
hood by  any  lawful  calling;  to  pursue  any  livelihood  or  avoca- 
tion, and  for  that  purpose  to  enter  into  all  contracts  which  may 
be  proper."  Allgeyer  v.  Louisiana,  165  II.  S.  578,  589.  But 
surely  it  will  not  be  said  to  be  a  part  of  anyone 's  liberty,  as  recog- 
nized by  the  supreme  law  of  the  land,  that  he  shall  be  allowed  to 
introduce  into  commerce  among  the  States  an  element  that  will 
be  confessedly  injurious  to  the  public  morals. 

If  it  be  said  that  the  act  of  1895  is  inconsistent  with  the 
Tenth  Amendment,  reserving  to  the  States  respectively,  or  to 
the  people,  the  powers  not  delegated  to  the  United  States,  the 
answer  is  that  the  power  to  regulate  commerce  among  the  States 
has  been  expressly  delegated  to  Congress. 

Besides,  Congress,  by  that  act,  does  not  assume  to  interfere 
with  traffic  or  commerce  in  lottery  tickets  carried  on  exclusively 
within  the  limits  of  any  State,  but  has  in  view  only  commerce  of 
that  kind  among  the  several. States.  It  has  not  assumed  to  inter- 
fere with  the  completely  internal  affairs  of  any  State,  and  has 
only  legislated  in  respect  of  a  matter  which  concerns  the  people 
of  the'  United  States.  As  a  State  may,  for  the  purpose  of 
guarding  the  morals  of  its  own  people,  forbid  all  sales  of  lottery 
tickets  within  its  limits,  so  Congress,  for  the  purpose  of  guarding 
the  people  of  the  United  States  against  the  "widespread  pesti- 
lence of  lotteries"  and  to  protect  the  commerce  which  concerns 
all  the  States,  may  prohibit  the  carrying  of  lottery  tickets  from 
one  State  to  another.  In  legislating  upon  the  subject  of  the 
traffic  in  lottery  tickets,  as  carried  on  through  interstate  com- 
merce, Congress  only  supplemented  the  action  of  those  States — 
perhaps  all  of  them — which,  for  the  protection  of  the  public 
morals,  prohibit  the  drawing  of  lotteries,  as  well  as  the  sale  or 
circulation  of  lottery  tickets,  within  their  respective  limits.  It 


(  HAM  I' I  ON  v.  AMES.  317 

said,  in  effect,  that  it  would  not  permit  the  declared  policy  of 
the  States,  which  sought  to  protect  their  people  against  the  mis- 
chiefs of  the  lottery  business,  to  be  overthrown  or  disregarded 
by  the  agency  of  interstate  commerce.  We  should  hesitate  long 
before  adjudging  that  an  evil  of  such  appalling  character,  car- 
ried on  through  interstate  commerce,  cannot  be  met  and  crushed 
by  the  only  power  competent  to  that  end.  We  say  competent 
to  that  end,  because  Congress  alone  has  the  power  to  occupy,  by 
legislation,  the  whole  field  of  interstate  commerce.  What  was 
said  by  this  court  upon  a  former  occasion  may  well  be  here 
repeated:  "The  framers  of  the  Constitution  never  intended 
that  the  legislative  power  of  the  Nation  should  find  itself  incapa- 
ble of  disposing  of  a  subject-matter  specifically  committed  to  its 
charge."  In  re  Rahrer,  140  U.  S.  545,  562.  If  the  carrying  of 
lottery  tickets  from  one  State  to  another  be  interstate  commerce, 
and  if  Congress  is  of  opinion  that  an  effective  regulation  for  the 
suppression  of  lotteries,  carried  on  through  such  commerce,  is 
to  make  it  a  criminal  offense  to  cause  lottery  tickets  to  be  car- 
ried from  one  State  to  another,  we  know  of  no  authority  in  the 
courts  to  hold  that  the  means  thus  devised  are  not  appropriate 
and  necessary  to  protect  the  country  at  large  against  a  species  of 
interstate  commerce  which,  although  in  general  use  and  some- 
what favored  in  both  national  and  state  legislation  in  the  early 
history  of  the  country,  has  grown  into  disrepute,  and  has 
become  offensive  to  the  entire  people  of  the  Nation.  It  is  a 
kind  of  traffic  which  no  one  can  be  entitled  to  pursue  as  of 
right.  .  .  . 

It  is  said,  however,  that  if,  in  order  to  suppress  lotteries  carried 
on  through  interstate  commerce,  Congress  may  exclude  lottery 
tickets  from  such  commerce,  that  principle  leads  necessarily  to 
the  conclusion  that  Congress  may  arbitrarily  exclude  from  com- 
merce among  the  States  any  article,  commodity,  or  thing,  of 
whatever  kind  or  nature,  or  however  useful  or  valuable,  which 
it  may  choose,  no  matter  with  what  motive,  to  declare  shall  not 
be  carried  from  one  State  to  another.  It  will  be  time  enough  to 
consider  the  constitutionality  of  such  legislation  when  we  must 
do  so.  The  present  case  does  not  require  the  court  to  declare  the 
full  extent  of  the  power  that  Congress  may  exercise  in  the  regu- 
lation of  commerce  among  the  States.  We  may,  however,  repeat, 
in  this  connection,  what  the  court  has  heretofore  said,  that  the 
power  of  Congress  to  regulate  commerce  among  the  States, 
although  plenary,  cannot  be  deemed  arbitrary,  since  it  is  subject 
to  such  limitations  or  restrictions  as  are  prescribed  by  the  Con- 


318  CASES  ON  CONSTITUTIONAL  LAW. 

stitution.  This  power,  therefore,  may  not  be  exercised  so  as  to 
infringe  rights  secured  or  protected  by  that  instrument.  It 
would  not  be  difficult  to  imagine  legislation  that  would  be  justly 
liable  to  such  an  objection  as  that  stated,  and  be  hostile  to  the 
objects  for  the  accomplishment  of  which  Congress  was  invested 
with  the  general  power  to  regulate  commerce  among  the  several 
States.  But,  as  often  said,  the  possible  abuse  of  a  power  is  not 
an  argument  against  its  existence.  There  is  probably  no  govern- 
mental power  that  may  not  be  exerted  to  the  injury  of  the 
public.  If  what  is  done  by  Congress  is  manifestly  in  excess  of 
the  powers  granted  to  it,  then  upon  the  courts  will  rest  the  duty 
of  adjudging  that  its  action  is  neither  legal  nor  binding  upon  the 
people.  But  if  what  Congress  does  is  within  the  limits  of  its 
power,  and  is  simply  unwise  or  injurious,  the  remedy  is  that 
suggested  by  Chief  Justice  Marshall  in  Gibbons  v.  Ogden,  when 
he  said:  "The  wisdom  and  the  discretion  of  Congress,  their 
identity  with  the  people,  and  the  influence  which  their  con- 
stituents possess  at  elections,  are,  in  this,  as  in  many  other 
instances,  as  that,  for  example,  of  declaring  war,  the  sole 
restraints  on  which  they  have  relied,  to  secure  them  from  its 
abuse.  They  are  the  restraints  on  which  the  people  must  often 
rely  solely,  in  all  representative  governments."  .  .  . 
The  judgment  is  Affirmed. 

MR.  CHIEF  JUSTICE  FULLER,  with  whom  concur  MR.  JUSTICE 
BREWER,  MR.  JUSTICE  SHIRAS,  and  MR.  JUSTICE  PECKHAM,  dis- 
senting. .  .  . 

NOTE. — For  other  examples  of  prohibition  as  a  means  of  regulation,  see 
United  States  v.  Brig  William"  (1808),  2  Hall's  Law  Journal,  255  (the 
Embargo  Act) ;  United  States  v.  Holliday  (1866),  3  Wallace,  407  (com- 
merce with  Indians);  Buttfield  v.  Stranahan  (1904),  192  U.  S.  470  (exclu- 
sion of  merchandise) ;  United  States  v.  Delaware  &  Hudson  Ey.  (1909), 
213  U.  S.  366  (carriers  forbidden  to  transport  their  own  products) ;  Hope 
v.  United  States  (1913),  227  U.  S.  308  (transportation  of  women  for  im- 
moral purposes). 


CHAPTER  VIH. 
DUE  PROCESS  OF  LAW. 

No  person  shall  be    ...    deprived  of  life,  liberty,  or  prop- 
erty without  due  process  of  law. 

Constitution  of  the  United  States,  Amendment  V. 

No  State  shall    .    .    .     deprive  any  person  of  life,  liberty  or 
property  without  due  process  of  law. 

Constitution  of  the  United  States,  Amendment  XIV,  tec.  1. 

SECTION  1.    GENERAL  CONCEPTION  OP  DUE  PROCESS. 
TWINING  v.  STATE  OF  NEW  JERSEY. 

SUPREME  COURT  or  THE  UNITED  STATES.     1908. 
211  U.  S.  78;  53  Lawyers'  Ed.  97. 

Error  to  the  Court  of  Errors  and  Appeals  of  the  State  of  New 
Jersey. 

[The  statement  of  facts  and  the  first  part  of  the  opinion  are 
given  ante,  p.  114.] 

MR.  JUSTICE  MOODY  .  .  .  delivered  the  opinion  of  the 
court.  .  .  . 

The  defendants,  however,  do  not  stop  here.  They  appeal  to 
another  clause  of  the  Fourteenth  Amendment,  and  insist  that 
the  self-incrimination,  which  they  alleged  the  instruction  to  the 
jury  compelled,  was  a  denial  of  due  process  of  law.  This  con- 
tention requires  separate  consideration,  for  it  is  possible  that 
some  of  the  personal  rights  safeguarded  by  the  first  eight  Amend- 
ments against  National  action  may  also  be  safeguarded  against 
State  action,  because  a  denial  of  them  would  be  a  denial  of  due 
process  of  law.  Chicago,  Burlington  &  Quincy  Railroad  v.  Chi- 
cago, 166  U.  S.  226.  If  this  is  so,  it  is  not  because  those  rights 
are  enumerated  in  the  first  eight  Amendments,  but  because  they 
are  of  such  a  nature  that  they  are  included  in  the  conception  of 
due  process  of  law.  Few  phrases  of  the  law  are  so  elusive  of 
exact  apprehension  as  this.  Doubtless  the  difficulties  of  ascer- 
taining its  connotation  have  been  increased  in  American  juris- 

319 


320  CASES  ON  CONSTITUTIONAL  LAW. 

prudence,  where  it  has  been  embodied  in  constitutions  and  put 
to  new  uses  as  a  limit  on  legislative  power.  This  court  has 
always  declined  to  give  a  comprehensive  definition  of  it,  and  has 
preferred  that  its  full  meaning  should  be  gradually  ascertained 
by  the  process  of  inclusion  and  exclusion  in  the  course  of  the 
decisions  of  cases  as  they  arise.  There  are  certain  general  prin- 
ciples well  settled,  however,  which  narrow  the  field  of  discus- 
sion and  may  serve  as  helps  to  correct  conclusions.  These  prin- 
ciples grow  out  of  the  proposition  universally  accepted  by 
American  courts  on  the  authority  of  Coke,  that  the  words  ' '  due 
process  of  law"  are  equivalent  in  meaning  to  the  words  "law  of 
the  land,"  contained  in  that  chapter  of  Magna  Carta,  which 
provides  that  "no  freeman  shall  be  taken,  or  imprisoned,  or 
disseised,  or  outlawed,  or  exiled,  or  any  wise  destroyed;  nor 
shall  we  go  upon  him,  nor  send  upon  him,  but  by  lawful  judg- 
ment of  his  peers  or  by  the  law  of  the  land. ' '  Murray  v.  Hobo- 
ken  Land  Co.,  18  How.  272 ;  Davidson  v.  New  Orleans,  96  U.  S. 
97;  Jones  v.  Bobbins,  8  Gray,  329;  Cooley,  Const.  Lim.  (7th  ed.) 
500;  McGehee,  Due  Process  of  Law,  16.  From  the  considera- 
tion of  the  meaning  of  the  words  in  the  light  of  their  historical 
origin  this  court  has  drawn  the  following  conclusions : 

First.  What  is  due  process  of  law  may  be  ascertained  by  an 
examination  of  those  settled  usages  and  modes  of  proceedings 
existing  in  the  common  and  statute  law  of  England  before  the 
emigration  of  our  ancestors,  and  shown  not  to  have  been  unsuited 
to  their  civil  and  political  condition  by  having  been  acted  on  by 
them  after  the  settlement  of  this  country.  .  .  .  "A  process 
of  law,"  said  Mr.  Justice  Matthews,  .  .  .  "which  is  not 
otherwise  forbidden,  must  be  taken  to  be  due  process  of  law,  if 
it  can  show  the  sanction  of  settled  usage  both  in  England  and 
this  country."  Hurtado  v.  California,  110  U.  S.  516,  528. 

Second.  It  does  not  follow,  however,  that  a  procedure  settled 
in  English  law  at  the  time  of  the  emigration,  and  brought  to 
this  country  and  practiced  by  our  ancestors,  is  an  essential  ele- 
ment of  due  process  of  law.  If  that  were  so  the  procedure  of 
the  first  half  of  the  seventeenth  century  would  be  fastened  upon 
the  American  jurisprudence  like  a  straight-jacket,  only  to  be 
unloosed  by  constitutional  amendment.  That,  said  Mr.  Justice 
Matthews,  in  the  same  case,  p.  529,  "would  be  to  deny  every 
quality  of  the  law  but  its  age,  and  to  render  it  incapable  of 
progress  or  improvement."  Holden  v.  Hardy,  169  U.  S.  366, 
388 ;  Brown  v.  New  Jersey,  175  U.  S.  172,  175. 

Third.  But,  consistently  with  the  requirements  of  due  process, 


TWINING  v.  STATE  OF  NEW  JERSEY.  321 

no  change  in  ancient  procedure  can  be  made  which  disregards 
those  fundamental  principles,  to  be  ascertained  from  time  to 
time  by  judicial  action,  which  have  relation  to  process  of  law 
and  protect  the  citizen  in  his  private  right,  and  guard  him 
against  the  arbitrary  action  of  government.  .  .  . 

The  question  under  consideration  may  first  be  tested  by  the 
application  of  these  settled  doctrines  of  this  court.  If  the  state- 
ment of  Mr.  Justice  Curtis,  as  elucidated  in  Hurtado  v.  Cali- 
fornia, is  to  be  taken  literally,  that  alone  might  almost  be  deci- 
sive. For  nothing  is  more  certain,  in  point  of  historical  fact, 
than  that  the  practice  of  compulsory  self-incrimination  in  the 
courts  and  elsewhere  existed  for  four  hundred  years  after  the 
granting  of  Magna  Carta,  continued  throughout  the  reign  of 
Charles  I  (though  then  beginning  to  be  seriously  questioned), 
gained  at  least  some  foothold  among  the  early  colonists  of  this 
country,  and  was  not  entirely  omitted  at  trials  in  England  until 
the  eighteenth  century.  Wigmore  on  Evidence,  Sec.  2250  (see 
for  the  Colonies,  note  108)  ;  Ilallam's  Constitutional  History  of 
England,  ch.  VIII,  2  Widdleton's  American  ed.  37  (describ- 
ing the  criminal  jurisdiction  of  the  Court  of  Star  Chamber) ; 
Bentham's  Rationale  of  Judicial  Evidence,  book  IX,  ch.  Ill, 
§IV.  .  .  . 

The  question  before  us  is  the  meaning  of  a  constitutional  pro- 
vision which  forbids  the  States  to  deny  to  any  person  due  process 
of  law.  In  the  decision  of  this  question  we  have  the  authority 
to  take  into  account  only  those  fundamental  rights  which  are 
expressed  in  that  provision,  not  the  rights  fundamental  in  citi- 
zenship, state  or  National,  for  they  are  secured  otherwise,  but 
the  rights  fundamental  in  due  process  and  therefore  an  essential 
part  of  it.  We  have  to  consider  whether  the  right  is  so  funda- 
mental in  due  process  that  a  refusal  of  the  right  is  a  denial  of 
due  process.  One  aid  to  the  solution  of  the  question  is  to  inquire 
how  the  right  was  rated  during  the  time  when  the  meaning  of 
due  process  was  in  a  formative  slate  and  before  it  was  incorpo- 
rated in  American  constitutional  law.  Did  those  who  then  were 
formulating  and  insisting  ttpon  the  rights  of  the  people  enter- 
tain the  view  that  the  right  was  so  fundamental  that  there 
could  be  no  due  process  without  it!  It  has  already  appeared 
that,  prior  to  the  formation  of  the  American  Constitutions,  in 
which  the  exemption  from  compulsory  self-incrimination  was 
specifically  secured,  separately,  independently,  and  side  by  side 
with  the  requirement  of  due  process,  the  doctrine  was  formed,  as 
other  doctrines  of  the  law  of  evidence  have  been  formed,  by  the 

E.  c.  L.— « 


322  CASES  ON  CONSTITUTIONAL  LAW. 

course  of  decision  in  the  courts  covering  a  long  period  of  time. 
Searching  further,  we  find  nothing  to  show  that  it  was  then 
thought  to  be  other  than  a  just  and  useful  principle  of  law. 
None  of  the  great  instruments  in  which  we  are  accustomed  to 
look  for  the  declaration  of  the  fundamental  rights  made  refer- 
ence to  it.  The  privilege  was  not  dreamed  of  for  hundreds  of 
years  after  Magna  Carta  (1215)  and  could  not  have  been 
implied  in  the  "law  of  the  land"  there  secured.  The  Petition 
of  Right  (1629),  though  it  insists  upon  the  right  secured  by 
Magna  Carta  to  be  condemned  only  by  the  law  of  the  land,  and 
sets  forth  by  way  of  grievance  divers  violations  of  it,  is  silent 
upon  the  practice  of  compulsory  self-incrimination,  though  it 
was  then  a  matter  of  common  occurrence  in  all  the  courts  of 
the  realm.  The  Bill  of  Rights  of  the  first  year  of  the  reign  of 
William  and  Mary  (1689)  is  likewise  silent,  though  the  practice 
of  questioning  the  prisoner  at  his  trial  had  not  then  ceased. 
The  negative  argument  which  arises  out  of  the  omission  of  all 
reference  to  any  exemption  from  compulsory  self-incrimination 
in  these  three  great  declarations  of  English  liberty  (though  it 
is  not  supposed  to  amount  to  a  demonstration)  is  supported  by 
the  positive  argument  that  the  English  Courts  and  Parliaments, 
as  we  have  seen,  have  dealt  with  the  exemption  as  they  would 
have  dealt  with  any  other  rule  of  evidence,  apparently  with- 
out a  thought  that  the  question  was  affected  by  the  law  of  the 
land  of  Magna  Carta,  or  the  due  process  of  law  which  is  its 
equivalent. 

We  pass  by  the  meager  records  of  the  early  colonial  time,  so  far 
as  they  have  come  to  our  attention,  as  affording  light  too  un- 
certain for  guidance.  See  Wigmore,  §  2250,  note  108 ;  Henning's 
Stat.  at  Large,  422  (Va.,  1677)  ;  1  Winthrop's  History  of  New 
England,  47,  Provincial  Act,  4  W.  &  M.  Ancient  Charters, 
Massachusetts,  214.  Though  it  is  worthy  of  note  that  neither 
the  declaration  of  rights  of  the  Stamp  Act  Congress  (1765)  nor 
the  declaration  of  rights  of  the  Continental  Congress  (1774) 
nor  the  ordinance  for  the  government  of  the  Northwestern 
Territory  included  the  privilege  in  their  enumeration  of  funda- 
mental rights. 

But  the  history  of  the  incorporation  of  the  privilege  in  an 
amendment  to  the  National  Constitution  is  full  of  significance  in 
this  connection.  .  .  .  The  nine  States  requisite  to  put  the 
Constitution  in  operation  ratified  it  without  a  suggestion  of  in- 
corporating this  privilege.  .  .  . 


TWINING  v.  STATE  OP  NEW  JERSKY.  323 

Thus  it  appears  that  four  only  of  the  thirteen  original  States 
insisted  upon  incorporating  the  privilege  in  the  Constitution, 
ami  they  separately  and  simultaneously  with  the  requirement  of 
due  process  of  law,  and  that  three  States  proposing  amendments 
were  silent  upon  this  subject.  It  is  worthy  of  note  that  two  of 
these  four  States  did  not  incorporate  the  privilege  in  their  own 
constitutions,  where  it  would  have  had  a  much  wider  field  of  use- 
fulness, until  many  years  after.  New  York  in  1821  and  Rhode 
Island  in  1842  (its  first  constitution).  This  survey  does  not 
tend  to  show  that  it  was  then  in  this  country  the  universal  or 
even  general  belief  that  the  privilege  ranked  among  the  funda- 
mental and  inalienable  rights  of  mankind;  and  what  is  more 
important  here,  it  affirmatively  shows  that  the  privilege  was  not 
conceived  to  be  inherent  in  due  process  of  law,  but  on  the  other 
hand  a  right  separate,  independent  and  outside  of  due  process. 
Congress,  in  submitting  the  amendments  to  the  several  States, 
treated  the  two  rights  as  exclusive  of  each  other.  Such  also  has 
been  the  view  of  the  States  in  framing  their  own  constitutions, 
for  in  every  case,  except  in  New  Jersey  and  Iowa,  where  the  due 
process  clause  or  its  equivalent  is  included,  it  has  been  thought 
necessary  to  include  separately  the  privilege  clause.  Nor  have 
we  been  referred  to  any  decision  of  a  state  court  save  one  (State 
v.  Height,  117  Iowa,  650),  where  the  exemption  has  been  held  to 
be  required  by  due  process  of  law.  The  inference  is  irresistible 
that  it  has  been  the  opinion  of  constitution  makers  that  the  privi- 
lege, if  fundamental  in  any  sense,  is  not  fundamental  in  due 
process  of  law,  nor  an  essential  part  of  it.  We  believe  that 
this  opinion  is  proved  to  have  been  correct  by  every  historical 
test  by  which  the  meaning  of  the  phrase  can  be  tried. 

The  decisions  of  this  court,  though  they  are  silent  on  the  pre- 
cise question  before  us,  ought  to  be  searched  to  discover  if  thejr 
present  any  analogies  which  are  helpful  in  its  decision.  The 
essential  elements  of  due  process  of  law,  already  established  by 
them,  are  singularly  few,  though  of  wide  application  and  deep 
significance.  We  are  not  here  concerned  with  due  process  in 
restraining  substantive  laws,  as,  for  example,  that  which  forbids 
the  taking  of  private  property  for  public  use  without  compen- 
sation. We  need  notice  now  only  those  cases  which  deal  with 
the  principles'  which  must  be  observed  in  the  trial  of  criminal 
and  civil  causes.  Due  process  requires  that  the  court  which 
assumes  to  determine  the  rights  of  parties  shall  have  jurisdiction, 
Pennoyer  v.  Neff,  95  U.  S.  714,  733;  Scott  v.  McNcal,  154  U.  S. 


324  CASES  ON  CONSTITUTIONAL  LAW. 

34 ;  Old  Wayne  Life  Association  v.  McDonough,  204  U.  S.  8,  and 
that  there  shall  be  notice  and  opportunity  for  hearing  given 
the  parties,  Hovey  v.  Elliott,  167  U.  S.  409 ;  Boiler  v.  Holly,  176 
U.  S.  398 ;  and  see  Londoner  v.  Denver,  210  U.  S.  373.  Subject 
to  these  two  fundamental  conditions,  which  seem  to  be  universally 
prescribed  in  all  systems  of  law  established  by  civilized  countries, 
this  court  has  up  to  this  time  sustained  all  state  laws,  statutory 
or  judicially  declared,  regulating  procedure,  evidence  and  meth- 
ods of  trial,  and  held  them  to  be  consistent  with  due  process  of 
law.  Walker  v.  Sauvinet,  92  U.  S.  90 ;  Re  Converse,  137  U.  S. 
624;  Caldwell  v.  Texas,  137  U.  S.  692 ;  Leeper  v.  Texas,  139  U.  S. 
462;  Hallinger  v.  Davis,  146  U.  S.  314;  McNulty  v.  California, 
149  U.  S.  645;  McKane  v.  Durston,  153  U.  S.  684;  Iowa  Central 
v.  Iowa,  160  U.  S.  389 ;  Lowe  v.  Kansas,  163  U.  S.  81 ;  Allen  v. 
Georgia,  166  U.  S.  138;  Hodgson  v.  Vermont,  168  U.  S.  262; 
Brown  v.  New  Jersey,  175  U.  S.  172 ;  Bolln  v.  Nebraska,  176  U.  S. 
83;  Maxwell  v.  Dow,  176  U.  S.  581;  Simon  v.  Craft,  182  U.  S. 
427;  West  v.  Louisiana,  194  U.  S.  258;  Marvin  v.  Trout,  199 
U.  S.  212 ;  Eogers  v.  Peck,  199  U.  S.  425 ;  Howard  v.  Kentucky, 
200  U.  S.  164;  Rawlins  v.  Georgia,  201  U.  S.  638;  Felts  v.  Mur- 
phy, 201  U.  S.  123. 

Among  the  most  notable  of  these  decisions  are  those  sustaining 
the  denial  of  jury  trial  both  in  civil  and  criminal  cases,  the  sub- 
stitution of  informations  for  indictments  by  a  grand  jury,  the 
enactment  that  the  possession  of  policy  slips  raises  a  presumption 
of  illegality,  and  the  admission  of  the  deposition  of  an  absent 
witness  in  a  criminal  case.  j^The  cases  proceed  upon  the  theory 
that,  given  a  court  of  justice  which  has  jurisdiction  and  acts, 
not  arbitrarily  but  in  conformity  with  a  general  law,  upon  evi- 
dence, and  after  inquiry  made  with  notice  to  the  parties  affected 
and  opportunity  to  be  heard,  then  all  the  requirements  of  due 
process,  so  far  as  it  relates  to  procedure  in  court  and  methods 
of  trial  and  character  and  effect  of  evidence,  are  complied 
with.  Y  .  . 

It  is  impossible  to  reconcile  the  reasoning  of  these  cases  and 
the  rule  which  governed  their  decision  with  the  theory  that  an 
exemption  from  compulsory  self-incrimination  is  included  in  the 
conception  of  due  process  of  law.  Indeed,  the  reasoning  for 
including  indictment  by  a  grand  jury  and  trial  by  a  petit  jury 
in  that  conception,  which  has  been  rejected  by  this  court  in 
Hurtado  v.  California  and  Maxwell  v.  Dow,  was  historically  and 
in  principle  much  stronger.  Clearly  appreciating  this,  Mr.  Jus- 


TWINING  v.  STATE  OP  NEW  JERSEY.  325 

tice  Harlan,  in  his  dissent  in  each  of  these  cases,  pointed  out 
that  the  inexorable  logic  of  the  reasoning  of  the  court  was  to 
allow  the  States,  so  far  as  the  Federal  Constitution  was  con- 
cerned, to  compel  any  person  to  be  a  witness  against  himself. 
In  Missouri  v.  Lewis,  101  U.  S.  22,  Mr.  Justice  Bradley,  speaking 
for  the  whole  court,  said,  in  effect,  that  the  Fourteenth  Amend- 
ment would  not  prevent  a  State  from  adopting  or  continuing 
the  civil  law  instead  of  the  common  law.  This  dictum  has  been 
approved  and  made  an  essential  part  of  the  reasoning  of  the 
decision  in  Holden  v.  Hardy,  169  U.  S.  387,  389,  and  Maxwell  v. 
Dow,  176  U.  S.  598.  The  statement  excludes  the  possibility  that 
the  privilege  is  essential  to  due  progress,  for  it  hardly  need  be 
said  that  the  interrogation  of  the  accused  at  his  trial  is  the  prac- 
tice in  the  civil  law. 

Even  if  the  historical  meaning  of  due  process  of  law  and  the 
decisions  of  this  court  did  not  exclude  the  privilege  from  it,  it 
would  be  going  far  to  rate  it  as  an  immutable  principle  of  jus- 
tice which  is  the  inalienable  possession  of  every  citizen  of  a  free 
government.  Salutary  as  the  principle  may  seem  to  the  great 
majority,  it  cannot  be  ranked  with  the  right  to  hearing  before 
condemnation,  the  immunity  from  arbitrary  power  not  acting  by 
general  laws,  and  the  inviolability  of  private  property.  The 
wisdom  of  the  exemption  has  never  been  universally  assented 
to  since  the  days  of  Benthara ;  many  doubt  it  to-day,  and  it  is 
best  defended  not  as  an  unchangeable  principle  of  universal  jus- 
tice but  as  a  law  proved  by  experience  to  be  expedient.  See  Wig- 
more,  Sec.  2251.  It  has  no  place  in  the  jurisprudence  of  civil- 
ized and  free  countries  outside  the  domain  of  the  common  law, 
and  it  is  nowhere  observed  among  our  own  people  in  the  search 
for  truth  outside  the  administration  of  the  law.  It  should,  must 
and  will  be  rigidly  observed  where  it  is  secured  by  specific  con- 
stitutional safeguards,  but  there  is  nothing  in  it  which  gives  it  a 
sanctity  above  and  before  constitutions  themselves.  Much  might 
be  said  in  favor  of  the  view  that  the  privilege  was  guaranteed 
against  state  impairment  as  a  privilege  and  immunity  of 
National  citizenship,  but,  as  has  been  shown,  the  decisions  of 
this  court  have  foreclosed  that  view.  There  seems  to  be  no  rea- 
son whatever,  however,  for  straining  the  meaning  of  due  process 
of  law  to  include  this  privilege  within  it,  because,  perhaps,  we 
may  think  it  of  great  value.  The  States  had  guarded  the  privi- 
lege to  the  satisfaction  of  their  own  people  up  to  the  adoption 
of  the  Fourteenth  Amendment.  No  reason  is  perceived  why  they 
cannot  continue  to  do  so.  The  power  of  their  people  ought  not 


326  CASES  ON  CONSTITUTIONAL  LAW. 

to  be  fettered,  their  sense  of  responsibility  lessened,  and  their 
capacity  for  sober  and  restrained  self-government  weakened  by 
forced  construction  of  the  Federal  Constitution.  If  the  people 
of  New  Jersey  are  not  content  with  the  law  as  declared  in 
repeated  decisions  of  their  courts,  the  remedy  is  in  their  own 
hands.  They  may,  if  they  choose,  alter  it  by  legislation,  as  the 
people  of  Maine  did  when  the  courts  of  that  State  made  the 
same  ruling.  State  v.  Bartlett,  55  Maine,  200;  State  v.  Law- 
rence, 57  Maine,  574;  State  v.  Cleaves,  59  Maine,  298;  State  v. 
Banks,  78  Maine,  490,  492 ;  Kev.  Stat.  ch.  135,  §  19. 

We  have  assumed  only  for  the  purpose  of  discussion  that  what 
was  done  in  the  case  at  bar  was  an  infringement  of  the  privilege 
against  self-incrimination.  We  do  not  intend,  however,  to  lend 
any  countenance  to  the  truth  of  that  assumption.  .  .  .  The 
authorities  upon  the  question  are  in  conflict.  We  do  not  pass 
upon  the  conflict  because,  for  the  reasons  given,  we  think  that 
the  exemption  from  compulsory  self-incrimination  in  the  courts 
of  the  States  is  not  secured  by  any  part  of  the  Federal  Constitu- 
tion. Judgment  affirmed. 

MR.  JUSTICE  HAELAN,  dissenting.     .     .     . 

NOTE. — Many  writers  have  sought  to  trace  the  phrase  ' '  due  process  of 
law"  to  this  thirty-ninth  (twenty-ninth  of  Henry  Ill's  reissue  of  1225) 
chapter  of  Magna  Charta: 

No  freeman  shall  be  taken  or  imprisoned  or  disseized  or  exiled 
or  in  any  way  destroyed,  nor  will  we  go  upon  him  nor  send  upon 
him,  except  by  the  lawful  judgment  of  his  peers  or  by  the  law  of 
the  land. 

Coke's  identification  of  the  term  "due  process"  with  the  term  "law 
of  the  land ' '  as  found  in  Magna  Charta  has  been  generally  followed  by  the 
courts,  though  its  correctness  as  a  matter  of  history  has  been  challenged 
by  several  scholars.  As  to  the  history  and  meaning  of  this  section  of  Magna 
Charta,  see  Bemont,  Chartes  des  Libertes  Anglaises;  McKechnie,  Magna 
Carta;  Harcourt,  His  Grace  the  Steward  and  Trial  of  Peers;  Adam's,  The 
Origin  of  the  English  Constitution;  Pollock  and  Maitland,  History  of 
English  Law  Before  the  Time  of  Edward  I;  Bigelow,  History  of  Procedure 
in  England.  For  an  acute  and  convincing  criticism  of  the  older  view  of 
Magna  Charta  see  C.  H.  Mcllwain,  ' '  Due  Process  of  Law  in  Magna  Charta, ' ' 
Columbia  Law  Review,  xiv  27.  Whatever  the  historical  relation  of  the 
phraseology  of  Magna  Charta  and  the  Fourteenth  Amendment  may  have 
been,  their  interpretation  has  radically  differed  in  that  while  Magna  Charta 
has  been  regarded  as  a  restriction  upon  the  executive  and  the  courts,  the 
Fourteenth  Amendment  was  at  first  thought  to  be  an  inhibition  only  on  the 
State  legislatures.  It  was  not  until  the  decision  in  Ex  parte  Virginia  (1880), 


TWINING  v.  STATE  OF  NEW  JEKSiOV.  327 

100  U.  8.  339,  that  it  was  clearly  held  applicable  to  any  agent  through 
which  the  State  might  act. 

The  phrase  "due  process  of  law"  has  also  been  associated  with  the 
doctriue  of  fundamental  rights,  operating  as  an  inherent  limitation  on  all 
legislative  power  and  which  was  given  currency  by  Lord  Coke  in  Dr.  Bon- 
ham 's  Case  (1610),  8  Rep.  118o: 

It  appears  in  our  books,  that  in  many  cases,  the  common  law 
will  control  acts  of  Parliament,  and  sometimes  adjudge  them  to  be 
utterly  void :  for  when  an  act  of  Parliament  is  against  common  right 
and  reason,  or  repugnant,  or  impossible  to  be  performed,  the  com- 
mon law  will  control  it  and  adjudge  such  act  to  be  void. 

This  was  approved  by  Lord  Ilobart  in  Day  v.  Savadge  (1623),  Hobart, 
87,  where  he  said: 

Even  an  Act  of  Parliament,  made  against  natural  equity,  as  to 
make  a  man  judge  in  his  own  case,  is  void  in  itself,  for  jura  natures 
sunt  immutabilia,  and  they  are  leges  legvm. 

This  dictum,  even  though  supported  by  the  great  name  of  Lord  Coke, 
•MB*  never  to  have  been  made  the  ground  for  annulling  an  act  of  Parlia- 
ment, and  the  doctrine  itself  was  expressly  disavowed  by  Mr.  Justice  Willes, 
who  said  in  Lee  v.  Bude  and  Torrington  By.  (1871),  L.  R.  6  C.  P.  576,  582, 
that  the  "dictum  stands  as  a  warning  rather  than  as  an  authority  to  be 
followed."  In  America  the  doctrine  proved  useful  to  the  leaders  of  the 
Bevolution  as  a  justification  of  resistance  to  the  laws  of  Parliament,  and 
after  the  establishment  of  government  under  the  Constitution  courts  not 
infrequently  asserted  that  the  legislative  power  was  subject  to  certain  inher- 
ent limitations  to  be  found  in  the  fundamental  laws  of  nature  or  in  the 
maxims  of  free  government  In  Calder  v.  Bull  (1798),  3  Dallas,  386,  Mr. 
Justice  Chase  said: 

I  cannot  subscribe  to  the  omnipotence  of  a  State  Legislature, 
or  think  it  is  absolute  and  without  controul,  although  its  authority 
should  not  be  expressly  restrained  by  the  Constitution,  or  funda- 
mental law,  of  the  State.  The  people  of  the  United  States  erected 
their  Constitutions,  or  forms  of  government,  to  establish  justice,  to 
promote  the  general  welfare,  to  secure  the  blessings  of  liberty,  and 
to  protect  their  persons  and  pro{>erty  from  violence.  The  purposes 
for  which  men  enter  into  society  will  determine  the  nature  and 
terms  of  social  compact;  and  as  they  are  the  foundation  of  the 
legislative  power,  they  will  decide  what  are  the  proper  objects  of 
it.  The  nature  and  ends  of  legislative  power  will  limit  the  exer- 
cise of  it.  .  .  .  There  are  certain  vital  principles  in  our  free, 
Republican  governments,  which  will  determine  and  overrule  an 
apparent  and  flagrant  abuse  of  legislative  power;  as  to  authorize 
manifest  injustice  by  positive  law;  or  to  take  away  that  security 
for  personal  liberty,  or  private  property,  for  the  protection  whereof 
the  government  was  established.  An  Act  of  the  Legislature  ( for  I 
cannot  call  it  a  law)  contrary  to  the  great  first  principles  of  the 
social  compact,  cannot  be  considered  a  rightful  exercise  of  legisla- 
tive authority. 


328  CASES  ON  CONSTITUTIONAL  LAW. 

In  Fletcher  v.  Peck  (1810),  6  Cranch,  87,  135,  Chief  Justice  Marshall 
said: 

It  may  well  be  doubted  whether  the  nature  of  society  and  of 
government  does  not  prescribe  some  limits  to  the  legislative  power ; 
and  if  any  be  prescribed,  where  are  they  to  be  found,  if  the  prop- 
erty of  an  individual,  fairly  and  honestly  acquired,  may  be  seized 
without  compensation? 

The  same  view  was  expressed  by  Justice  Story  in  Wilkinson  v.  Leland 
(1829),  2  Peters,  627,  657: 

That  government  can  scarcely  be  deemed  to  be  free,  where  the 
rights  of  property  are  left  solely  dependent  upon  the  will  of  a 
legislative  body,  without  any  restraint.  The  fundamental  maxims 
of  a  free  government  seem  to  require  that  the  rights  of  personal 
liberty  and  private  property  should  be  held  sacred. 

This  doctrine  of  a  supreme  fundamental  law  seems  to  have  been  in  the 
mind  of  the  court  in  Webster  v.  Eeid  (1851),  11  Howard,  437,  and  in 
Hays  v.  Pacific  Mail  Steamship  Co.  (1854),  17  Howard,  596.  In  neither 
case  was  the  decision  based  on  any  constitutional  provision,  and  in  Web- 
ster v.  Eeid,  counsel  for  the  appellant  expressly  argued  that  the  statute 
involved  "was  made  in  subversion  of  principles  of  common  right,  and 
therefore  void."  11  Howard,  453.  Since  the  adoption  of  the  Fourteenth 
Amendment  the  doctrine  of  fundamental  right  has  often  been  referred  to 
by  the  Supreme  Court,  but  has  seldofh  been  made  the  basis  of  decision. 
It  has  been  merged  in  the  conception  of  due  process  of  law.  A  legislative 
act  which  would  formerly  have  been  condemned  as  a  violation  of  natural 
right  would  now  be  condemned  because  contrary  to  the  due  process  clause 
of  the  Federal  Constitution.  For  examples  of  the  present  treatment  of 
such  cases  as  Webster  v.  Eeid,  see  Dewey  v.  Des  Moines  (1899),  173  U.  S. 
193,  and  Eoller  v.  Holly  (1900),  176  U.  S.  398.  The  older  writers  fre- 
quently mentioned  the  transfer  of  A's  property  to  B  by  a  legislative  enact- 
ment as  an  example  of  an  act  that  would  be  void  because  against  common 
right  and  the  fundamental  law.  "In  Davidson  v.  New  Orleans  (1877),  96 
U.  S.  77,  102,  the  Supreme  Court  considered  such  a  statute  and  said,  with 
cautious  timidity,  that ' '  it  seems  to  us  "  that  it ' '  would,  if  effectual,  deprive 
A  of  his  property  without  due  process  of  law,  within  the  meaning  of  the 
constitutional  provision."  But  as  the  court  became  more  familiar  with 
the  idea,  it  adopted  a  bolder  tone,  until  finally,  in  Chicago,  Burlington  & 
Quincy  Ey.  v.  Chicago  (1897),  166  U.  S.  226,  241,  it  said: 

In  our  opinion,  a  judgment  of  a  state  courtr  even  if  it  be 
authorized  by  statute,  whereby  private  property  is  taken  for  the 
State  or  under  its  direction  for  public  use,  without  compensation 
made  or  secured  to  the  owner,  is,  upon  principle  and  authority, 
wanting  in  the  due  process  of  law  required  by  the  Fourteenth 
Amendment  of  the  Constitution  of  the  United  States,  and  the 
affirmance  of  such  judgment  by  the  highest  court  of  the  State  is  a 
denial  by  that  State  of  a  right  secured  to  the  owner  by  that  instru- 
ment. 


HARVESTER  CO.  v.  KENTUCKY.       329 

The  phrase  "due  process  of  law"  occurs  in  both  the  Fifth  and  Pour 
teenth  Amendments.  The  first  eight  amendments  apply  only  to  the  Federal 
Government,  Barren  v.  Baltimore  (1833),  7  Peters,  243,  but  the  Fourteenth 
Amendment  has  been  held  to  furnish  the  same  protection  against  arbitrary 
action  by  the  States  aa  is  afforded  by  the  Fifth  Amendment  against  similar 
action  by  the  Federal  Government.  Hibben  v.  Smith  (1903),  191  U.  8. 
310,  325.  The  fact  that  other  personal  rights,  such  as  the  right  to  com- 
pensation for  private  property  taken  for  a  public  use,  are  specifically  enu- 
merated in  the  Fifth  Amendment  does  not  exclude  them  from  the  term 
"due  process"  as  used  in  the  Fourteenth  Amendment.  Chicago,  Burling- 
ton &  Quincy  By.  v.  Chicago  (1897),  166  U.  3.  226. 

The  courts  have  been  as  reluctant  to  undertake  a  comprehensive  defini- 
tion of  the  phrase  "due  process  of  law"  as  of  the  phrase  "privilege  and 
immunities  of  citizens."  In  numerous  decisions  they  have  cited  the  much- 
quoted  passage  from  Daniel  Webster's  argument  in  the  Dartmouth  College 
Case,  4  Wheaton,  518,  581 : 

By  the  law  of  the  land  is  most  clearly  intended  the  general 
law;  a  law  which  hears  before  it  condemns;  which  proceeds  upon 
inquiry,  and  renders  judgment  only  after  trial.  The  meaning  is 
that  every  citizen  shall  hold  his  life,  liberty,  property  and  immuni- 
ties under  the  protection  of  the  general  rules  which  govern  society. 
Everything  which  may  pass  under  the  form  of  an  enactment  is 
not  therefore  to  be  considered  the  law  of  the  land. 


INTERNATIONAL  HARVESTER  COMPANY  OF  AMERICA 
v.  COMMONWEALTH  OF  KENTUCKY. 

SUPREME  COUBT  or  THE  UNITED  STATES.    1914. 
234  U.  R.  216;  58  Lawyers'  Ed.  1284. 

Error  to  the  Court  of  Appeals  of  the  State  of  Kentucky. 

MR.  JUSTICE  HOLMES  delivered  the  opinion  of  the  court. 

The  plaintiff  in  error  was  prosecuted,  convicted  and  fined  in 
three  different  counties  for  having  entered  into  an  agreement 
with  other  named  companies  for  the  purpose  of  controlling  the 
price  of  harvesters,  etc.,  manufactured  by  them  and  of  enhancing 
it  above  their  real  value ;  and  for  having  so  fixed  and  enhanced 
the  price,  and  for  having  sold  their  harvesters,  etc.,  at  a  price 
in  excess  of  their  real  value,  in  pursuance  of  the  agreement 
alleged.  The  judgments  were  affirmed  by  the  Court  of  Appeals. 
147  Kentucky,  564.  Id.  795.  148  Kentucky,  572.  The  plaintiff 
iri  error  saved  its  rights  under  the  Fourteenth  Amendment  and 
brought  the  cases  here.  .  .  . 

When  the  Court  of  Appeals  came  to  deal  with  the  act  of  1890, 


330  CASES  ON  CONSTITUTIONAL  LAW. 

the  constitution  of  1891,  and  the  act  of  1906,  it  reached  the  con- 
clusion, which  now  may  be  regarded  as  the  established  con- 
struction of  the  three  taken  together,  that  by  interaction  and  to 
avoid  questions  of  constitutionality,  they  were  to  be  taken  to 
make  any  combination  for  the  purpose  of  controlling  prices  law- 
ful unless  for  the  purpose  or  with  the  effect  of  fixing  a  price  that 
was  greater  or  less  than  the1  real  value  of  the  article.  Owen 
County  Burley  Tobacco  Society  v.  Brumback,  128  Kentucky, 
137,  151.  Commonwealth  v.  International  Harvester  Co.  of 
America,  131  Kentucky,  551,  568,  571-573.  International  Har- 
vester Co.  of  America  v.  Commonwealth,  137  Kentucky, 
668.  .  .  . 

The  plaintiff  in  error  contends  that  the  law  as  construed  offers 
no  standard  of  conduct  that  it  is  possible  to  know.  To  meet 
this,  in  the  present  and  earlier  cases,  the  real  value  is  declared 
to  be  ' '  its  market  value  under  fair  competition,  and  under  normal 
market  conditions."  147  Kentucky,  566.  Commonwealth  v. 
International  Harvester  Co.  of  America,  131  Kentucky,  551,  576. 
International  Harvester  Co.  of  America  v.  Commonwealth,  137 
Kentucky,  668,  677,  678.  We  have  to  consider  whether  in  appli- 
cation this  is  more  than  an  illusory  form  of  words,  when  nine 
years  after  it  was  incorporated,  a  combination  invited  by  the 
law  is  required  to  guess  at  its  peril  what  its  product  would  have 
sold  for  if  the  combination  had  not  existed  and  nothing  else  vio- 
lently affecting  values  had  occurred.  It  seems  that  since  1902 
the  price  of  the  machinery  sold  by  the  plaintiff  in  error  has 
risen  from  ten  to  fifteen  per  cent.  The  testimony  on  its  behalf 
showed  that  meantime  the  cost  of  materials  used  had  increased 
from  20  to  25  per  cent  and  labor  2iy2  per  cent.  Whatever  doubt 
there  may  be  about  the  exact  figures  we  hardly  suppose  the  fact 
of  a  rise  to  be  denied.  But  in  order  to  reach  what  is  called  the 
real  value,  a  price  from  which  all  effects  of  the  combination  are 
to  be  eliminated,  the  plaintiff  in  error  is  told  that  it  cannot  avail 
itself  of  the  rise  in  materials  because  it  was  able  to  get  them 
cheaper  through  one  of  the  subsidiary  companies  of  the  com- 
bination, and  that  the  saving  through  the  combination  more  than 
offset  all  the  rise  in  cost. 

This  perhaps  more  plainly  concerns  the  justice  of  the  law  in 
its  bearing  upon  the  plaintiff  in  error,  when  compared  with  its 
operation  upon  tobacco  raisers  who  are  said  to  have  doubled  or 
trebled  their  prices,  than  on  the  constitutional  question  proposed. 
But  it  also  concerns  that,  for  it  shows  how  impossible  it  is  to 
think  away  the  principal  facts  of  the  case  as  it  exists  and  say 


HURT  ADO  v.  CALIFORNIA  331 

what  would  have  been  the  price  in  an  imaginary  world.  Value 
is  the  effect  in  exchange  of  the  relative  social  desire  for  com- 
pared objects  expressed  in  terms  of  a  common  denominator.  It 
is  a  fact  and  generally  is  more  or  less  easy  to  ascertain.  But 
what  it  would  be  with  such  increase  of  a  never  extinguished  com- 
petition as  it  might  be  guessed  would  have  existed  had  the  com- 
bination not  been  made,  with  exclusion  of  the  actual  effect  of 
other  abnormal  influences,  and,  it  would  seem  with  exclusion 
also  of  any  increased  efficiency  in  the  machines  but  with  inclu- 
sion of  the  effect  of  the  combination  so  far  as  it  was  economically 
beneficial  to  itself  and  the  community,  is  a  problem  that  no 
human  ingenuity  could  solve.  The  reason  is  not  the  general 
uncertainties  of  a  jury  trial,  but  that  the  elements  necessary  to 
determine  the  imaginary  ideal  are  uncertain  both  in  nature  and 
degree  of  effect  to  the  acutest  commercial  mind.  The  very  com- 
munity, the  intensity  of  whose  wish  relatively  to  its  other  com- 
peting desires  determines  the  price  that  it  would  give,  has  to  be 
supposed  differently  organized  and  subject  to  other  influences 
than  those  under  which  it  acts.  It  is  easy  to  put  simple  cases ; 
but  the  one  before  us  is  at  least  as  complex  as  we  have  sup- 
posed, and  the  law  must  be  judged  by  it.  In  our  opinion  it  can- 
not stand.  .  .  . 

If  business  is  to  go  on,  men  must  unite  to  do  it  and  must  sell 
their  wares.  To  compel  them  to  guess  on  peril  of  indictment 
what  the  community  would  have  given  for  them  if  the  continu- 
ally changing  conditions  were  other  than  they  are,  to  an  uncer- 
tain extent;  to  divine  prophetically  what  the  reaction  of  only  par- 
tially determinate  facts  would  be  upon  the  imaginations  and 
desires  of  purchasers,  is  to  exact  gifts  that  mankind  does  not 
possess.  Judgments  reversed. 

MR,  JUSTICE  MCKENNA  and  MB.  JUSTICE  PITNEY  dissent. 


SECTION  2.    DUE  PROCESS  IN-  PROCEDURE. 

HURTADO  v.  CALIFORNIA. 

SUPREME  COURT  or  THK  UNITED  STATES.    1884. 
110  U.  8.  516;  28  Lawyers'  K.I. 

In  error  to  the  Supreme  Court  of  California. 

The  Constitution  of  the  State  of  California,  adopted  in  1879, 
in  article  1,  section  8,  provides  as  follows: 

"Offenses  heretofore  required  to  be  pro»>i-nt«'d  l.y  indictment 


332  CASES  ON  CONSTITUTIONAL  LAW. 

shall  be  prosecuted  by  information,  after  examination  and  com- 
mitment by  a  magistrate,  or  by  indictment,  with,  or  without  such 
examination  and  commitment,  as  may  be  prescribed  by  law.  A 
grand  jury  shall  be  drawn  and  summoned  at  least  once  a  year  in 
each  county. "... 

[Hurtado,  having  been  charged  with  murder  by  an  informa- 
tion filed  with  the  District  Attorney,  was  tried  by  jury,  convicted, 
and  sentenced  to  be  hanged.  Thereupon  he  filed  certain  objec- 
tions to  the  execution  of  the  sentence,  one  of  which  recited  "that 
the  said  plaintiff  in  error  had  been  held  to  answer  for  the  said 
crime  of  murder  by  the  district  attorney  of  the  said  county 
of  Sacramento,  upon  an  information  filed  by  him,  and  had  been 
tried  and  illegally  found  guilty  of  the  said  crime,  without  any 
presentment  or  indictment  of  any  grand  or  other  jury,  and  that 
the  judgment  rendered  upon  the  alleged  verdict  of  the  jury  in 
such  case  was  and  is  void,  and  if  executed  would  deprive  the 
plaintiff  in  error  of  his  life  or  liberty  without  due  process  of 
law."] 

MR.  JUSTICE  MATTHEWS  delivered  the  opinion  of  the  court.' 
After  reciting  the  facts  in  the  foregoing  language,  he  continued : 

It  is  claimed  on  behalf  of  the  prisoner  that  the  conviction  and 
sentence  are  void,  on  the  ground  that  they  are  repugnant  to  that 
clause  of  the  Fourteenth  Article  of  Amendment  of  the  Constitu- 
tion of  the  United  States  which  is  in  these  words : 

"Nor  shall  any  State  deprive  any  person  of  life,  liberty,  or 
property  without  due  process  of  law." 

The  proposition  of  law  we  are  asked  to  affirm  is  that  an  indict- 
ment or  presentment  by  a  grand  jury,  as  known  to  the  common 
law  of  England,  is  essential  to  that  ' '  due  process  of  law, ' '  when 
applied  to  prosecutions  for  felonies,  which  is  secured  and  guar- 
anteed by  this  provision  of  the  Constitution  of  the  United  States, 
and  which  accordingly  it  is  forbidden  to  the  States  respectively  to 
dispense  with  in  the  administration  of  criminal  law.  .  .  . 
[Here  follow  citations  from  Kalloch  v.  Superior  Court,  56  Cal. 
229,  and  Rowan  v.  The  State,  30  Wis.  129.] 

On  the  other  hand,  it  is  maintained  on  behalf  of  the  plaintiff 
in  error  that  the  phrase  "due  process  of  law"  is  equivalent  to 
"law  of  the  land,"  as  found  in  the  29th  chapter  of  Magna  Charta ; 
that  by  immemorial  usage  it  has  acquired  a  fixed,  definite, 
and  technical  meaning;  that  it  refers  to  and  includes,  not 
only  the  general  principles  of  public  liberty  and  private  right, 
which  lie  at  the  foundation  of  all  free  government,  but  the  very 


HURTADO  v.  CAL11 OKMA.  333 

institutions  which,  venerable  by  time  and  custom,  have  been 
tried  by  experience  and  found  fit  and  necessary  for  the  pres- 
ervation of  those  principles,  and  which,  having  been  the  birth- 
right and  inheritance  of  every  English  subject,  crossed  the 
Atlantic  with  the  colonists  and  were  transplanted  and  established 
in  the  fundamental  laws  of  the  State;  that,  having  been  origi- 
nally introduced  into  the  Constitution  of  the  United  States  as  a 
limitation  upon  the  powers  of  the  government,  brought  into  be- 
ing by  that  instrument,  it  has  now  been  added  as  an  additional 
security  to  the  individual  against  oppression  by  the  States  them- 
selves; that  one  of  these  institutions  is  that  of  the  grand  jury, 
an  indictment  or  presentment  by  which  against  the  accused  in 
cases  of  alleged  felonies  is  an  essential  part  of  due  process  of 
law,  in  order  that  he  may  not  be  harassed  or  destroyed  by  prose- 
cutions founded  only  upon  private  malice  or  popular  fury. 

The  Constitution  of  the  United  States  was  ordained,  it  is  true, 
by  descendants  of  Englishmen,  who  inherited  the  traditions  of 
English  law  and  history ;  but  it  was  made  for  an  undefined  and 
expanding  future,  and  for  a  people  gathered  and  to  be  gathered 
from  many  nations  and  of  many  tongues.  And  while  we  take 
just  pride  in  the  principles  and  institutions  of  the  common  law, 
we  are  not  to  forget  that  in  lands  where  other  systems  of  juris- 
prudence prevail,  the  ideas  and  processes  of  civil  justice  are  also 
not  unknown.  Due  process  of  law,  in  spite  of  the  absolutism  of 
continental  governments,  is  not  alien  to  that  code  which  survived 
the  Roman  Empire  as  the  foundation  of  modern  civilization  in 
Europe,  and  which  has  given  us  that  fundamental  maxim  of  dis- 
tributive justice, — suum  cuique  tribuere.  There  is  nothing  in 
Magna  Charta,  rightly  construed  as  a  broad  charter  of  public 
right  and  law,  which  ought  to  exclude  the  best  ideas  of  all  sys- 
tems and  of  every  age ;  and  as  it  was  the  characteristic  principle 
of  the  common  law  to  draw  its  inspiration  from  every  fountain 
of  justice,  we  are  not  to  assume  that  the  sources  of  its  supply 
have  been  exhausted.  On  the  contrary,  we  should  expect  that 
the  new  and  various  experiences  of  our  own  situation  and  system 
will  mould  and  shape  it  into  new  and  not  less  useful  forms. 

The  concessions  of  Magna  Charta  were  wrung  from  the  King 
as  guaranties  against  the  oppressions  and  usurpations  of  his 
prerogative.  It  did  not  enter  into  the  minds  of  the  barons  to 
.provide  security  against  their  own  body  or  in  favor  of  the  Com- 
mons by  limiting  the  power  of  Parliament;  so  that  bills  of 
attainder,  ex  post  facto  laws,  laws  declaring  forfeitures  of 


N 

334  CASES  ON  CONSTITUTIONAL  LAW. 

estates,  and  other  arbitrary  acts  of  legislation  which  occur  so 
frequently  in  English  history,  were  never  regarded  as  incon- 
sistent with  the  laws  of  the  land ;  for  notwithstanding  what  was 
attributed  to  Lord  Coke  in  Bonham's  Case,  8  Rep.  115,  118a, 
the  omnipotence  of  Parliament  over  the  common  law  was  abso- 
lute, even  against  common  right  and  reason.  The  actual  and 
practical  security  for  English  liberty  against  legislative  tyranny 
was  the  power  of  a  free  public  opinion  represented  by  the  Com- 
mons. 

In  this  country  written  constitutions  were  deemed  essential 
to  protect  the  rights  and  liberties  of  the  people  against  the  en- 
croachments of  power  delegated  to  their  governments,  and  the 
provisions  of  Magna  Charta  were  incorporated  into  Bills  of 
Eights.  They  were  limitations  upon  all  the  powers  of  govern- 
ment, legislative  as  well  as  executive  and  judicial. 

It  necessarily  happened,  therefore,  that  as  these  broad  and 
general  maxims  of  liberty  and  justice  held  in  our  system  a  dif- 
ferent place  and  performed  a  different  function  from  their  posi- 
tion and  office  in  English  constitutional  history  and  law,  they 
would  receive  and  justify  a  corresponding  and  more  comprehen- 
sive interpretation.  Applied  in  England  only  as  guards  against 
executive  usurpation  and  tyranny,  here  they  have  become  bul- 
warks also  against  arbitrary  legislation ;  but,  in  that  application, 
as  it  would  be  incongruous  to  measure  and  restrict  them  by 
the  ancient  customary  English  law,  they  must  be  held  to  guar- 
antee, not  particular  forms  of  procedure,  but  the  very  substance 
of  individual  rights  to  life,  liberty,  and  property. 

Restraints  that  could  be  fastened  upon  executive  authority 
with  precision  and  detail,  might  prove  obstructive  and  injurious 
when  imposed  on  the  just  and-  necessary  discretion  of  legislative 
power;  and,  while  in  every  instance,  laws  that  violated  express 
and  specific  injunctions  and  prohibitions  might,  without  em- 
barrassment, be  judicially  declared  to  be  void,  yet,  any  general 
principle  or  maxim,  founded  on  the  essential  nature  of  law,  as 
a  just  and  reasonable  expression  of  the  public  will  and  of  gov- 
ernment, as  instituted  by  popular  consent  and  for  the  general 
good,  can  only  be  applied  to  cases  coming  clearly  within  the 
scope  of  its  spirit  and  purpose,  and  not  to  legislative  provisions 
merely  establishing  forms  and  modes  of  attainment.  Such  regu- 
lations, to  adopt  a  sentence  of  Burke 's,  "may  alter  the  mode 
and  application  but  have  no  power  over  the  substance  of  origi- 
nal justice."  Tract  on  the  Popery  Laws,  6  Burke 's  Works,  ed. 
Little  &  Brown,  323. 


1 1 URTADO  v.  CALIFORN I A  335 

Such  is  the  often-repeated  doctrine  of  this  court.  .  .  . 
[Here  are  given  quotations  from  Munn  v.  Illinois,  94  U.  8.  113; 
Walker  v.  Sauvinet,  92  U.  S.  90;  Kennard  v.  Louisiana,  92  U.  S. 
480 ;  Davidson  v.  New  Orleans,  96  U.  S.  97.] 

We  are  to  construe  this  phrase  in  the  Fourteenth  Amendment 
by  the  t/sus  loqucndi  of  the  Constitution  itself.  The  same  words 
are  contained  in  the  Fifth  Amendment.  That  article  makes  spe- 
cific and  express  provision  for  perpetuating  the  institution  of 
the  grand  jury,  so  far  as  relates  to  prosecutions  for  the  more 
aggravated  crimes  under  the  laws  of  the  United  States.  It  de- 
clares that: 

' '  Xo  person  shall  be  held  to  answer  for  a  capital  or  otherwise 
infamous  crime,  unless  on  a  presentment  or  indictment  of  a 
grand  jury,  except  in  cases  arising  in  the  land  or  naval  forces, 
or  in  the  militia  when  in  actual  service  in  time  of  war  or  public 
danger;  nor  shall  any  person  be  subject  for  the  same  offense  to 
be  twice  put  in  jeopardy  of  life  or  limb;  nor  shall  he  be  com- 
pelled in  any  criminal  case  to  be  witness  against  himself."  [It 
then  immediately  adds] :  "Nor  be  deprived  of  life,  liberty,  or 
property  without  due  process  of  law." 

According  to  a  recognized  canon  of  interpretation,  especially 
applicable  to  formal  and  solemn  instruments  of  constitutional 
law,  we  are  forbidden  to  assume,  without  clear  reason  to  the 
contrary,  that  any  part  of  this  most  important  amendment  is 
superfluous.  The  natural  and  obvious  inference  is,  that  in  the 
sense  of  the  Constitution,  "due  process  of  law"  was  not  meant 
or  intended  to  include,  ex  vi  termini,  the  institution  and  pro- 
cedure of  a  grand  jury  in  any  case.  The  conclusion  is  equally 
irresistible,  that  when  the  same  phrase  was  employed  in  the  Four- 
teenth Amendment  to  restrain  the  action  of  the  States,  it  was 
used  in  the  same  sense  and  with  no  greater  extent ;  and  that  if  in 
the  adoption  of  that  amendment  it  had  been  part  of  its  pur- 
pose to  perpetuate  the  institution  of  the  grand  jury  in  all  the 
States,  it  would  have  embodied,  as  did  the  Fifth  Amendment,  ex- 
press declarations  to  that  effect.  Due  process  of  law  in  the  lat- 
ter refers  to  that  law  of  the  land  which  derives  its  authority 
from  the  legislative  powers  conferred  upon  Congress  by  the  Con- 
stitution of  the  United  States,  exercised  within  the  limits  therein 
prescribed,  and  interpreted  according  to  the  principles  of  the 
common  law.  In  the  Fourteenth  Amendment,  by  parity  of  reason, 
it  refers  to  that  law  of  the  land  in  each  State  which  derives  its 
authority  from  the  inherent  and  reserved  powers  of  the  State, 
exerted  within  the  limits  of  those  fundamental  principles  of  lib- 


336  CASES  ON  CONSTITUTIONAL  LAW. 

erty  and  justice  which  lie  at  the  base  of  all  our  civil  and  politi- 
cal institutions,  and  the  greatest  security  for  which  resides  in 
the  right  of  the  people  to  make  their  own  laws,  and  alter  them 
at  their  pleasure.  .  .  . 

But  it  is  not  to  be  supposed  that  these  legislative  powers  are 
absolute  and  despotic,  and  that  the  amendment  prescribing  due 
process  of  law  is  too  vague  and  indefinite  to  operate  as  a  practi- 
cal restraint.  It  is  not  every  act,  legislative  in  form,  that  is  law. 
Law  is  something  more  than  mere  will  exerted  as  an  act  of  power. 
It  must  be  not  a  special  rule  for  a  particular  person  or  a  particu- 
lar case,  but,  in  the  language  of  Mr.  Webster,  in  his  familiar 
definition,  "the  general  law,  a  law  which  hears  before  it  con- 
demns, which  proceeds  upon  inquiry,  and  renders  judgment  only 
after  trial,"  so  "that  every  citizen  shall  hold  his  life,  liberty, 
property  and  immunities  under  the  protection  of  the  general 
rules  which  govern  society,"  and  thus  excluding,  as  not  due 
process  of  law,  acts  of  attainder,  bills  of  pains  and  penalties, 
acts  of  confiscation,  acts  reversing  judgments,  and  acts  directly 
transferring  one  man's  estate  to  another,  legislative  judgments 
and  decrees,  and  other  similar  special,  partial  and  arbitrary 
exertions  of  power  under  the  forms  of  legislation.  Arbitrary 
power,  enforcing  its  edicts  to  the  injury  of  the  persons  and  prop- 
erty of  its  objects,  is  not  law,  whether  manifested  as  the  decree 
of  a  personal  monarch  or  of  an  impersonal  multitude.  And  the 
limitations  imposed  by  our  constitutional  law  upon  the  action 
of  the  governments,  both  State  and  national,  are  essential  to  the 
preservation  of  public  and  private  rights,  notwithstanding  the 
representative  character  of  our  political  institutions.  The  en- 
forcement of  these  limitations  by  judicial  process  is  the  device 
of  self-governing  communities-  to  protect  the  rights  of  individ- 
uals and  minorities,  as  well  against  the  power  of  numbers  as 
against  the  violence  of  public  agents  transcending  the  limits  of 
lawful  authority,  even  when  acting  in  the  name  and  wielding 
the  force  of  the  government.  .  .  . 

(It  follows  that  any  legal  proceeding  enforced  by  public  au- 
thority, whether  sanctioned  by  age  and  custom,  or  newly  devised 
in  the  discretion  of  the  legislative  power,  /in  furtherance  of  the 
general  public  good,  which  regards  and  preserves  these  princi- 
ples of  liberty  and  justice,  must  be  held  to  be  due  process  of 
law.  .  .  .  ^ 

Tried  by  those  principles,  we  are  unable  to  say  that  the  sub- 
stitution for  a  presentment  or  indictment  by  a  grand  jury  of  the 
proceeding  by  information,  after  examination  and  commitment 


HURTADO  v.  CALIFORNIA.  337 

by  a  magistrate,  certifying  to  the  probable  guilt  of  the  defend- 
ant, with  the  right  on  his  part  to  the  aid  of  counsel,  and  to  the 
cross-examination  of  the  witnesses  produced  for  the  prosecution, 
is  not  due  process  of  law.  It  is,  as  we  have  seen,  an  ancient  pro- 
ceeding at  common  law,  which  might  include  every  case  of  an 
offense  of  less  grade  than  a  felony,  except  misprision  of  treason ; 
and  in  every  circumstance  of  its  administration,  as  authorized 
by  the  statute  of  California,  it  carefully  considers  and  guards 
the  substantial  interest  of  the  prisoner.  It  is  merely  a  prelimi- 
nary proceeding,  and  can  result  in  no  final  judgment,  except  as 
a  consequence  of  a  regular  judicial  trial,  conducted  precisely  as 
in  cases  of  indictments. 

In  reference  to  this  mode  of  proceeding  at  the  common  law, 
and  which  he  says  "is  as  ancient  as  the  common  law  itself," 
Blackstone  adds  (4  Com.  305) : 

"And  as  to  those  offenses  in  which  informations  were  allowed 
as  well  as  indictments,  so  long  as  they  were  confined  to  this  high 
and  respectable  jurisdiction,  and  were  carried  on  in  a  legal  and 
regular  course  in  his  Majesty's  Court  of  King's  Bench,  the  sub- 
ject had  no  reason  to  complain.  The  same  notice  was  given,  the 
same  process  was  issued,  the  same  pleas  were  allowed,  the  same 
trial  by  jury  was  had,  the  same  judgment  was  given  by  the 
same  judges,  as  if  the  prosecution  had  originally  been  by  indict- 
ment." 

For  these  reasons,  finding  no  error  therein,  the  judgment  of 
the  Supreme  Court  of  California  is 

Affirmed. 

MB.  JUSTICE  HAELAN,  dissenting.    .    .    . 

NOTE. — The  requirement  of  due  process  does  not  necessitate  the  adop- 
tion of  any  particular  form  of  procedure,  but  leaves  to  each  State  a  wide 
latitude  of  choice,  "subject  only  to  the  qualification  that  such  procedure 
must  not  work  a  denial  of  fundamental  rights  or  conflict  with  specific  and 
applicable  provisions  of  the  Federal  Constitution."  Brown  v.  New  Jersey 
(1899),  175  U.  8.  172,  175.  The  procedure  may  vary  with  the  nature  of  the 
case.  For  the  collection  of  taxes  and  other  debts  due  to  the  government, 
the  summary  process  sanctioned  by  long  usage  in  England  and  the  United 
States  has  been  held  valid,  Murray  v.  Hoboken  Land  Co.  (1856),  18  How- 
ard, 272;  King  v.  Mullins  (1898),  171  U.  8.  404;  but  a  summary  process 
must  not  be  an  arbitrary  one,  McMillen  v.  Anderson  (1877),  95  U.  8.  37. 
Duties  of  a  quasi -judicial  character  may  be  devolved  upon  administrative 
boards,  for  "due  process  is  not  necessarily  judicial  process,"  Beets  v. 
Michigan  (1903),  188  U.  8.  505,  507.  80  the  determination  of  a  question 
of  sanity  (Nobles  v.  Georgia  [1897],  168  U.  8.  398),  or  of  the  citizenship 
of  a  person  desiring  to  enter  the  United  States  (United  States  v.  Ju  Toy 
[1905],  198  U.  8.  253),  or  whether  a  given  importation  of  tea  is  entitled  to 

K.C.L.-M 


338  CASES  ON  CONSTITUTIONAL  LAW. 

admission  to  the  country  (Buttfield  v.  Stranahan  [1904],  192  U.  S.  470),  or 
whether  the  mail  of  a  given  business  house  may  be  excluded  from  the  post- 
office  because  of  fraud  (Public  Clearing  House  v.  Coyne  [1904],  194  TJ.  S. 
497),  may  be  entrusted  to  the  decision  of  an  administrative  board  or 
officer,  and  such  decision,  if  based  upon  evidence  (American  School  of 
Magnetic  Healing  v.  McAnnulty  [1902],  187  U.  S.  94)  may  be  final.  But 
an  appeal  may  always  be  taken  to  the  courts  to  determine  whether  the 
action  taken  was  within  the  jurisdiction  conferred  and  whether  the  funda- 
mental principles  inherent  in  the  conception  of  due  process  of  law  have 
been  observed.  Yamataya  v.  Fisher,  (1903),  189  U.  S.  86.  On  the  eon- 
clusiveness  of  the  determinations  of  administrative  officials,  see  an  excellent 
treatment  by  Powell  in  ' '  Conclusiveness  of  Administrative  Determinations 
in  the  Federal  Government,"  American  Political  Science  Eeview,  I,  583, 
and  Willoughby,  The  Constitutional  Law  of  the  United  States,  II,  ch. 
Ixiv. 

What  evidence  may  be  received  (Adams  v.  New  York  [1904],  192  U.  S. 
585) ;  whether  an  appeal  to  a  higher  court  shall  be  permitted  (McKane  v. 
Durston  [1894],  153  U.  S.  684) ;  whether  the  accused  may  demand  to  be 
confronted  by  the  witnesses  against  him  (West  v.  Louisiana  [1904],  194 
U.  S.  258) ;  whether  a  jury  trial  shall  be  by  a  common  law  jury  or  by  a 
lesser  jury  (Maxwell  v.  Dow  [1900],  176  U.  S.  581) ;  or  apparently  whether 
there  need  be  a  jury  trial  at  all  in  a  State  court  (Hawaii  v.  Mankichi 
[1903],  190  U.  S.  197;  Dorr  v.  United  States  [1904],  195  U.  S.  138),  are 
all  questions  to  be  determined  by  the  several  States. 

A  good  general  statement  as  to  procedural  requirements  was  made  by  Mr. 
Justice  Field  in  Hagar  v.  Eeclamation  District  (1884),  111  U.  S.  701,  708: 

/  By  due  process  of  law  is  meant  one  which,  following  the  forms 
of  law,  is  appropriate  to  the  case,  and  just  to  the  parties  to  be 
affected.  It  must  be  pursued  in  the  ordinary  mode  prescribed  by 
the  law ;  it  must  be  adapted  to  the  end  to  be  attained ;  and  whenever 
it  is  necessary  for  the  protection  of  the  parties,  it  must  give  them 
an  opportunity  to  be  heard  respecting  the  justice  of  the  judgment 
sought.  XThe  clause  in  question  means  therefore  that  there  can  be 
no  proceeding  against  life,  liberty,  or  property  which  may  result 
in  the  deprivation  of  either,  without  the  observance  of  those  gen- 
eral rules  established  in  our  system  of  jurisprudence  for  the  security 
of  private  rights.  |  g  £.  >  -»>  — 


SECTION  3.    DUE  PROCESS  AS  TO  LIBERTY  AND  PROPERTY. 
WADLEY  SOUTHERN  RAILWAY  COMPANY  v.  GEORGIA. 

SUPREME  COURT  OP  THE  UNITED  STATES.  1915. 
235  U.  S.  651;  59  Lawyers'  Ed.  00. 

Error  to  the  Supreme  Court  of  the  State  of  Georgia. 

[The  legislature  of  Georgia  enacted  a  law  creating  a  Rail- 
road Commission  and  providing  a  penalty  of  not  more  than  five 


WADLEY  SOUTHERN  RY.  CO.  v.  GEORGIA.      339 

thousand  dollars  for  the  violation  by  any  person  or  corporation 
of  any  lawful  order  of  the  Commission.  Each  day  that  the  vio- 
lation continued  was  declared  to  be  a  separate  offense.  The 
Wadley  Southern  Railway  Company  was  ordered  by  the  Com- 
mission on  March  12,  1910,  to  desist  from  certain  discrimina- 
tions between  shippers,  and  a  copy  of  the  order  was  delivered 
to  it  on  March  14.  The  company  took  no  steps  to  test  the  valid- 
ity of  the  order  in  the  courts,  but  on  April  4  it  notified  the 
Commission  that  it  would  decline  to  comply  therewith  on  the 
ground  that  it  was  void.  On  May  26,  1910,  the  State  instituted 
proceedings  to  enforce  the  penalty.  The  company's  defense  is 
indicated  in  the  opinion.] 

MB.  JUSTICE  LAMAB  .  .  .  delivered  the  opinion  of  the 
court.  .  .  . 

The  Wadley  Southern  insists,  however,  that  even  if  the  Com- 
mission had  the  power  to  make  the  order,  the  judgment  impos- 
ing a  fine  of  $1,000  for  its  violation  should  nevertheless  be  set 
aside  for  the  reason  that  the  statute — authorizing  so  enormous  a 
penalty  as  $5,000  a  day  for  violating  lawful  orders  of  the  Com- 
mission— operated  to  prevent  an  appeal  to  the  courts  by  the  car- 
rier for  the  purpose  of  determining  whether  the  order  was  law- 
ful, and  therefore  binding;  or  arbitrary  and  unreasonable,  and 
therefore  invalid.  In  support  of  this  contention  it  cites  Ex  parte 
Young,  209  U.  S.  123,  163 ;  Willcox  v.  Consolidated  Gas  Co.,  212 
U.  S.  19,  53.  ... 

This  contention  would  have  been  well  founded  if  this  and  other 
hearings  of  a  like  nature  before  the  Commission  had  resulted  in 
orders  which  had  the  characteristics  of  a  final  judgment.  But 
this  was  not  so,  for  they  were  not  conclusive.  Chicago  &c.  Ry. 
v.  Minnesota,  134  U.  S.  418,  458.  Their  lawfulness  was  treated 
by  the  Georgia  court  in  the  present  case  as  open  to  inquiry, 
when  the  Company  was  sued  for  the  penalty.  The  question  of 
their  validity  was  also  open  to  inquiry,  in  equity  proceedings, 
in  the  state  court,  where  they  would  have  been  set  aside  if  found 
to  be  arbitrary  and  unreasonable,  or  to  have  violated  some  statu- 
tory or  constitutional  right.  Railroad  Commission  v.  Louis.  & 
Nash.  R.  R.,  140  Georgia,  817  (6a),  836;  State  of  Georgia  v. 
Western  &  Atlantic  R.  R.,  138  Georgia,  835;  Southern  Ry.  v. 
Atlanta  Sand  Co.,  135  Georgia,  35,  50.  Such  orders  were  also  sub- 
ject'to  attack  in  the  Federal  courts  on  the  ground  that  the  party 
affected  had  been  unconstitutionally  deprived  of  property. 
Louis.  &  Nash.  R.  R.  v.  Garrett,  231  U.  S.  298,  313,  and  cases 


340  CASES  ON  CONSTITUTIONAL  LAW. 

cited.  And  this  right  to  a  judicial  determination  exists  whether 
the  deprivation  is  by  a  rate  statute — passed  without  a  hearing 
(as  in  the  Young  and  Consolidated  Gas  Cases) ;  or  by  admin- 
istrative orders  of  a  Commission  made  after  a  hearing  (as  in 
the  Garrett  Case,  supra).  For  rates  made  by  the  General  As- 
sembly or  administrative  orders  made  by  a  Commission  are  both 
legislative  in  their  nature  (Garrett  Case,  supra;  Grand  Trunk 
R.  R.  Co.  v.  Indiana  Railroad  Commission,  221  U.  S.  400,  403) 
and  any  party  affected  by  such  legislative  action  is  entitled,  by 
the  due  process  clause,  to  a  judicial  review  of  the  question  as  to 
whether  he  has  been  thereby  deprived  of  a  right  protected  by 
the  Constitution.  Chicago  &c.  Ry.  v.  Minnesota,  134  U.  S.  418, 
458 ;  Chicago  &c.  Ry.  v.  Tompkins,  176  U.  S.  167,  174 ;  Prentis  v. 
Atlantic  Coast  Line,  211  U.  S.  210;  Missouri  Pacific  Ry.  v.  Ne- 
braska, 217  U.  S.  196,  207;  Oregon  R.  R.  &  Nav.  Co.  v.  Fair- 
child,  224  U.  S.  510 ;  San  Joaquin  Co.  v.  Stanislaus  County,  233 
U.  S.  459 ;  Bacon  v.  Rutland  R.  R.,  232  U.  S.  134 ;  Detroit  &c. 
R.  R.  v.  Michigan  R.  R.  Com.,  235  U.  S.  402. 

The  methods  by  which  this  right  to  a  judicial  review  are 
secured  vary  in  different  jurisdictions.  .  .  .  But  in  whatever 
method  enforced,  the  right  to  a  judicial  review  must  be  substan- 
tial, adequate,  and  safely  available;  but  that  right  is  merely 
nominal  and  illusory  if  the  party  to  be  affected  can  appeal  to 
the  courts  only  at  the  risk  of  having  to  pay  penalties  so  great 
that  it  is  better  to  yield  to  orders  of  uncertain  legality  rather 
than  to  ask  for  the  protection  of  the  law.  .  .  . 

As  statutes  establishing  Railroad  Commissions  and  providing 
penalties  for  violations  of  legislative  orders  are  of  recent  origin, 
the  cases  discussing  the  subject  are  comparatively  few.  See 
Mercantile  Trust  Co.  v.  Tex.  &  Pacif.  Ry.,  51  Fed.  Rep.  529 
(4),  549  (14-15)  (1892)  ;  Louis.  &  Nash.  R.  R.  v.  McChord,  103 
Fed.  Rep.  216,  225  (1900)  ;  Cotting  v.  Kansas  City  Stock 
Yards  Co.,  183  U.  S.  79,  101  (1901)  ;  Consolidated  Gas.  Co. 
v.  Mayer,  146  Fed.  Rep.  150,  154  (1906)  ;  Ex  parte  Wood,  155 
Fed.  Rep.  190  (1907) ;  Consolidated  Gas  Co.  v.  New  York,  157 
Fed.  Rep.  849  (1907)  ;  Ex  parte  Young,  209  U.  S.  123  (1908)  ; 
Willcox  v.  Consolidated  Gas  Co.,  212  U.  S.  19,  53  (1909)  ;  Mis- 
souri Pacific  Ry.  v.  Nebraska,  217  U.  S.  196,  207  (1910)  (build- 
ing spur  tracks)  ;  Missouri  Pacific  Ry.  v.  Tucker,  230  U.  S.  340, 
349  (1913)  ;  Bonnett  v.  Vallier,  136  Wis.  193  (15,  16) ;  Coal  & 
Coke  Ry.  v.  Conley,  67  W.  Va.  129,  132,  and  the  present  case  of 
Wadley  Southern  Ry.  v.  State  of  Georgia,  137  Ga.  497. 

These  cases  do  not  proceed  upon  the  idea  that  there  is  any 


WADLEY  SOUTHERN  RY.  CO.  v.  GEORGIA.      341 

want  of  power  to  prescribe  penalties  heavy  enough  to  compel 
obedience  to  administrative  orders,  but  they  are  all  based  upon 
the  fundamental  proposition  that  under  the  Constitution  penal- 
ties cannot  be  collected  if  they  operate  to  deter  an  interested 
party  from  testing  the  validity  of  legislative  rates  or  orders 
legislative  in  their  nature.  Their  legality  is  not  apparent  on  the 
face  of  such  orders,  but  depends  upon  a  showing  of  extrinsic 
facts.  A  statute,  therefore,  which  imposes  heavy  penalties  for 
violation  of  commands  of  an  unascertained  quality  is,  in  its 
nature,  somewhat  akin  to  an  ex  post  facto  law  since  it  pun- 
ishes for  an  act  done  when  the  legality  of  the  command  has  not 
been  authoritatively  determined.  Liability  to  a  penalty  for  vio- 
lation of  such  orders,  before  their  validity  has  been  determined, 
would  put  the  party  affected  in  a  position  where  he  himself 
must  at  his  own  risk  pass  upon  the  question.  He  must  either 
obey  what  may  finally  be  held  to  be  a  void  order,  or  disobey 
what  may  ultimately  be  held  to  be  a  lawful  order.  If  a  statute 
could  constitutionally  impose  heavy  penalties  for  violation  of 
commands  of  such  disputable  and  uncertain  legality,  the  result 
inevitably  would  be  that  the  carrier  would  yield  to  void  orders, 
rather  than  risk  the  enormous  cumulative  or  confiscatory  pun- 
ishment that  might  be  imposed  if  they  should  thereafter  be  de- 
clared to  be  valid.  .  .  . 

The  matter  was  elaborately  discussed,  most  carefully  consid- 
ered, and  finally  decided  in  Ex  parte  Young,  209  U.  S.  123, 
\vlu-re  a  statute  fixed  rates,  and,  though  it  afforded  no  oppor- 
tunity for  a  judicial  hearing  to  determine  whether  the  rates 
were  confiscatory,  yet  imposed  heavy  and  cumulative  penalties 
for  collecting  other  than  those  statutory  rates.  .  .  . 

It  was 'in  the  light  of  the  fact  that  the  penalty  was  imposed 
for  charging  other  than  those  statutory  rates,  whose  reasonable- 
ness was  a  matter  of  doubt  and  uncertainty,  that  this  court 
in  the  Young  Case,  speaking  through  Mr.  Justice  Peckham, 
pointed  out  that  a  law  which  in  terms  or  by  the  operation  of 
deterrent  penalties  made  statutes  or  orders  of  a  commission  con- 
clusive as  to  the  sufficiency  of  rates  would  be  unconstitutional. 
He  summed  up  the  discussion  as  follows  (209  U.  S.  p.  147) : 
"It  may  therefore  be  said  that  when  the  penalties  for  disobedi- 
ence are  by  fines  so  enormous  and  imprisonment  so  severe  as  to 
intimidate  the  Company  and  its  officers  from  resorting  to  the 
courts  to  test  the  validity  of  the  legislation,  the  result  is  the 
same  as  if  the  law  in  terms  prohibited  the  Company  from  seek- 
ing judicial  construction  of  laws  which  deeply  affect  its  rights." 


342  CASES  ON  CONSTITUTIONAL  LAW. 

Like  views  were  expressed  as  to  the  invalidity  of  the  heavy  pen- 
alties involved  in  Willcox  v.  Consolidated  Gas  Co.,  212  U.  S.  19, 
53.  ... 

In  the  light  of  this  unbroken  line  of  authorities,  therefore,  a 
statute  like  the  one  here  involved  (under  which  penalties  of 
$5,000  a  day  could  be  imposed  for  violating  orders  of  the  Com- 
mission) would  be  void  if  access  to  the  courts  to  test  the  con- 
stitutional validity  of  the  requirement  was  denied;  or,  if  the 
right  of  review  actually  given  was  one  of  which  the  carrier 
could  not  safely  avail  itself.  .  .  . 

Giving  then  Sec.  2625  that  construction  which  makes  it  con- 
stitutional and  it  appears  that  the  laws  of  Georgia  gave  to  the 
Wadley  Southern  R.  R.  Co.  the  right  to  a  judicial  review  of  the 
order  of  March  12,  1910,  by  a  suit  against  the  Commission. 

The  only  question  then  left  for  determination  is  whether  in 
view  of  such  right,  the  penalty  can  be  collected  for  the  violation 
of  an  order  not  known  to  be  valid  at  the  date  of  the  disobedi- 
ence sought  to  be  punished.  On  that  question,  little  can  be  found 
in  the  books.  But  on  principle,  and  on  the  authority  of  all  that 
has  been  said  on  the  subject,  there  is  no  room  to  doubt  the  power 
of  the  State  to  impose  a  punishment  heavy  enough  to  secure 
obedience  to  such  orders  after  they  have  been  found  to  be  law- 
ful ;  nor  to  impose  a  penalty  for  acts  of  disobedience,  committed 
after  the  carrier  had  ample  opportunity  to  test  the  validity  of 
administrative  orders  and  failed  so  to  do.  .  .  . 

If  the  Wadley  Southern  Railroad  Company  had  availed  itself 
of  that  right,  and — with  reasonable  promptness — had  applied  to 
the  courts  for  a  judicial  review  of  the  order,  and  if,  on  such 
hearing,  it  had  been  found  to  be  void,  no  penalties  could  have 
been  imposed  for  past  or  future  violations.  If,  in  that  proceed- 
ing, the  order  had  been  found  to  be  valid,  the  carrier  would 
thereafter  have  been  subject  to  penalties  for  any  subsequent 
violations  of  what  had  thus  been  judicially  established  to  be  a 
lawful  order — though  not  so  in  respect  of  violations  prior  to 
such  adjudication. 

But,  where,  as  here,  after  reasonable  notice  of  the  making  of 
the  order,  the  carrier  failed  to  resort  to  the  safe,  adequate  and 
available  remedy  by  which  it  could  test  in  the  courts  its  valid- 
ity, and  preferred  to  make  its  defense  by  attacking  the  validity 
of  the  order  when  sued  for  the  penalty,  it  is  subject  to  the  pen- 
alty when  that  defense,  as  here,  proved  to  be  unsuccessful. 

The  judgment  of  the  Supreme  Court  of  Georgia  is 

Affirmed. 


COPPAGE  v.  STATE  OP  KANSAS.  343 

NOTE. — AB  to  the  historical  meaning  of  the  word  liberty,  see  an  article 
bj  C.  E.  Shattuck  on  "The  Meaning  of  the  Term  'Liberty'  in  Federal  and 
State  Constitutions"  in  Harvard  Law  Review,  iv,  365.  AB  to  the  judicial 
interpretation  of  the  word,  see  Allgeyer  v.  Louisiana  (1897),  165  U.  8. 
678,  where  the  cases  are  well  summarized,  and  Jacobson  v.  Massachusetts 
(1905),  197  U.  S.  11,  an  excellent  discussion  of  the  relation  of  personal 
liberty  and  the  police  power.  See  also  Freund,  The  Police  Power,  ?h».  xxi- 
and  Cooley,  Constitutional  Limitations. 


COPPAGE  v.  STATE  OF  KANSAS. 

SUPREME  COURT  or  THE  UNITED  STATES.    1915. 
236  U.  8.  1;  59  Lawyers'  Ed.  00. 

Error  to  the  Supreme  Court  of  the  State  of  Kansas. 

[The  legislature  of  Kansas  in  1903  passed  an  act  making  it 
unlawful  for  any  individual,  firm,  or  corporation,  or  any  agent 
thereof  "to  coerce,  require,  demand  or  influence  any  person  or 
persons  to  enter  into  any  agreement  .  .  .  not  to  join  or  be- 
come or  remain  a  member  of  any  labor  organization  or  associ- 
ation, as  a  condition  of  such  person  or  persons  securing  em- 
ployment, or  continuing  in  the  employment  of  such  individual, 
firm  or  corporation."  Hedges,  a  switchman  in  the  employ  of 
the  Frisco  Railway,  having  refused  to  sign  an  agreement  to 
withdraw  from  the  Switchmen's  Union  while  he  remained  in 
the  service  of  the  Frisco  Company  was  dismissed  by  his  super- 
intendent, Coppage,  who  was  thereupon  fined  for  violation  of 
the  statute.  His  conviction  was  sustained  by  the  Supreme  Court 
of  Kansas,  87  Kansas,  752,  two  judges  dissenting.] 

MB.  JUSTICE  PITNEY  delivered  the  opinion  of  the  court.     .     .     . 

In  Adair  v.  United  States,  208  U.  S.  161,  this  court  had  to 
deal  with  a  question  not  distinguishable  in  principle  from  the 
one  now  presented.  Congress  in  Sec.  10  of  an  act  of  June  1, 
1898,  entitled  "An  Act  concerning  carriers  engaged  in  inter- 
state commerce  and  their  employes"  (c.  370,  30  Stat.  424,  428), 
had  enacted  "That  any  employer  subject  to  the  provisions  of 
this  Act  and  any  officer,  agent,  or  receiver  of  such  employer  who 
shall  require  any  employe"  or  any  person  seeking  employment, 
as  a  condition  of  such  employment,  to  enter  into  an  agreement, 
either  written  or  verbal,  not  to  become  or  remain  a  member  of 
any  labor  corporation,  association  or  organization;  or  shall 


344  CASES  ON  CONSTITUTIONAL  LAW. 

threaten  any  employe  with  loss  of  employment,  or  shall  un- 
justly discriminate  against  any  employe  because  of  his  mem- 
bership in  such  labor  corporation,  association  or  organization 
.  .  .  is  hereby  declared  to  be  guilty  of  a  misdemeanor,  and, 
upon  conviction  thereof  .  .  .  shall  be  punished  for  each  of- 
fense by  a  fine  of  not  less  than  one  hundred  dollars  and  not  more 
than  one  thousand  dollars."  Adair  was  convicted  upon  an  in- 
dictment charging  that  he,  as  agent  of  a  common  carrier  subject 
to  the  provisions  of  the  Act,  unjustly  discriminated  against  a 
certain  employe  by  discharging  him  from  the  employ  of  the  car- 
rier because  of  his  membership  in  a  labor  organization.  The  court 
held  that  portion  of  the  Act  upon  which  the  conviction  rested 
to  be  an  invasion  of  the  personal  liberty  as  well  as  of  the  right 
of  property  guaranteed  by  the  Fifth  Amendment,  which  declares 
that  no  person  shall  be  deprived  of  liberty  or  property  without 
due  process  of  law.  Speaking  by  Mr.  Justice  Harlan  the  court 
said  (208  U.  S.  p.  174):  " While,  as  already  suggested,  the 
right  of  liberty  and  property  guaranteed  by  the  Constitution 
against  deprivation  without  due  process  of  law,  is  subject  to 
such  reasonable  restraints  as  the  common  good  or  the  general 
welfare  may  require,  it  is  not  within  the  functions  of  govern- 
ment— at  least  in  the  absence  of  contract  between  the  parties — 
to  compel  any  person  in  the  course  of  his  business  and  against 
his  will  to  accept  or  retain  the  personal  services  of  another,  or 
to  compel  any  person,  against  his  will,  to  perform  personal  serv- 
ices for  another.  The  right  of  a  person  to  sell  his  labor  upon 
such  terms  as  he  deems  proper  is,  in  its  essence,  the  same  as 
the  right  of  the  purchaser  of  labor  to  prescribe  the  conditions 
upon  which  he  will  accept -such  labor  from  the  person  offering 
to  sell  it.  So  the  right  of  the  employe  to  quit  the  service  of 
the  employer,  for  whatever  reason,  is  the  same  as  the  right  of  the 
employer,  for  whatever  reason,  to  dispense  with  the  services  of 
such  employe.  .  .  .  In  all  such  particulars  the  employer 
and  the  employe  have  equality  of  right,  and  any  legislation  that 
disturbs  that  equality  is  an  arbitrary  interference  with  the  lib- 
erty of  contract  which  no  government  can  legally  justify  in  a 
free  land." 

Unless  it  is  overruled,  this  decision  is  controlling  upon  the 
present  controversy ;  for  if  Congress  is  prevented  from  arbitrary 
interference  with  the  liberty  of  contract  because  of  the  "due 
process"  provision  of  the  Fifth  Amendment,  it  is  too  clear  for 
argument  that  the  States  are  prevented  from  the  like  interfer- 
ence by  virtue  of  the  corresponding  clause  of  the  Fourteenth 


COPPAOE  v.  STATE  OF  KANSAS.  345 

Amendment;  and  hence  if  it  be  unconstitutional  for  Congress 
to  deprive  an  employer  of  liberty  or  property  for  threatening 
an  employe"  with  loss  of  employment  or  discriminating  against 
him  because  of  his  membership  in  a  labor  organization,  it  is  un- 
constitutional for  a  State  to  similarly  punish  an  employer  for 
requiring  his  employe,  as  a  condition  to  securing  or  retaining 
employment,  to  agree  not  to  become  or  remain  a  member  of 
such  an  organization  while  so  employed. 

It  is  true  that,  while  the  statute  that  was  dealt  with  in 
the  Adair  Case  contained  a  clause  substantially  identical  with 
the  Kansas  act  now  under  consideration — a  clause  making  it  a 
misdemeanor  for  an  employer  to  require  an  employe  or  appli- 
cant for  employment,  as  a  condition  of  such  employment,  to 
agree  not  to  become  or  remain  a  member  of  a  labor  organiza- 
tion,— the  conviction  was  based  upon  another  clause,  which  re- 
lated to  discharging  an  employe  because  of  his  membership  in 
such  an  organization ;  and  the  decision,  naturally,  was  confined 
to  the  case  actually  presented  for  decision.  .  .  . 

The  constitutional  right  of  the  employer  to  discharge  an  em- 
ploye because  of  his  membership  in  a  labor  union  being  granted, 
can  the  employer  be  compelled  to  resort  to  this  extreme  meas- 
ure? May  he  not  offer  to  the  employe  an  option,  such  as  was 
offered  in  the  instant  case,  to  remain  in  the  employment  if  he 
will  retire  from  the  union ;  to  sever  the  former  relationship  only 
if  he  prefers  the  latter?  Granted  the  equal  freedom  of  both 
parties  to  the  contract  of  employment,  has  not  each  party  the 
right  to  stipulate  upon  what  terms  only  he  will  consent  to 
the  inception,  or  to  the  continuance,  of  that  relationship?  .  .  . 
Can  the  right  of  making  contracts  be  enjoyed  at  all,  except  by 
parties  coming  together  in  an  agreement  that  requires  each  party 
to  forego,  during  the  time  and  for  the  purpose  covered  by  the 
agreement,  any  inconsistent  exercise  of  his  constitutional  rights? 

These  queries  answer  themselves.  The  answers,  as  we  think, 
lead  to  a  single  conclusion:  Under  constitutional  freedom  of 
contract,  whatever  either  party  has  the  right  to  treat  as  suffi- 
cient ground  for  terminating  the  employment,  where  there  is  no 
stipulation  on  the  subject,  he  has  the  right  to  provide  by  insist- 
ing that  a  stipulation  respecting  it  shall  be  a  sine  qua  non  of  the 
inception  of  the  employment,  or  of  its  continuance  if  it  be  ter- 
minable at  win.  It  follows  that  this  case  can  not  be  distinguished 
from  Adair  v.  United  States.  .  .  . 

"We  are  now  asked,  in  effect,  to  overrule  it ;  and  in  view  of  the 
importance  of  the  issue  we  have  re-examined  the  question  from 


346  CASES  ON  CONSTITUTIONAL  LAW. 

the  standpoint  of  both  reason  and  authority.  As  a  result,  we 
are  constrained  to  reaffirm  the  doctrine  there  applied.  Neither 
the  doctrine  nor  this  application  of  it  is  novel;  we  will  en- 
deavor to  re-state  some  of  the  grounds  upon  which  it  rests. 
The  principle  is  fundamental  and  vital.  Included  in  the  right 
of  personal  liberty  and  the  right  of  private  property — partak- 
ing of  the  nature  of  each — is  the  right  to  make  contracts  for  the 
acquisition  of  property.  Chief  among  such  contracts  is  that  of 
personal  employment,  by  which  labor  and  other  services  are  ex- 
changed for  money  or  other  forms  of  property.  If  this  right  be 
struck  down  or  arbitrarily  interfered  with,  there  is  a  substan- 
tial impairment  of  liberty  in  the  long-established  constitutional 
sense.  The  right  is  as  essential  to  the  laborer  as  to  the  capital- 
ist, to  the  poor  as  to  the  rich;  for  the  vast  majority  of  persons 
have  no  other  honest  way  to  begin  to  acquire  property,  save  by 
working  for  money. 

An  interference  with  this  liberty  so  serious  as  that  now  under 
consideration,  and  so  disturbing  of  equality  of  right,  must  be 
deemed  to  be  arbitrary,  unless  it  be  supportable  as  a  reasonable 
exercise  of  the  police  power  of  the  State.  But,  notwithstand- 
ing the  strong  general  presumption  in  favor  of  the  validity  of 
state  laws,  we  do  not  think  the  statute  in  question,  as  construed 
and  applied  in  this  case,  can  be  sustained  as  a  legitimate  exer- 
cise of  that  power.  To  avoid  possible  misunderstanding,  we 
should  here  emphasize,  what  has  been  said  before,  that  so  far  as 
its  title  or  enacting  clause  expresses  a  purpose  to  deal  with  coer- 
cion, compulsion,  duress,  or  other  undue  influence,  we  have  no 
present  concern  with  it,  because  nothing  of  that  sort  is  involved 
in  this  case.  .  .  .  But,  in  this  case,  the  Kansas  court  of  last 
resort  has  held  that  Coppage,  the  plaintiff  in  error,  is  a  crimi- 
nal punishable  with  fine  or  imprisonment  under  this  statute 
simply  and  merely  because,  while  acting  as  the  representative 
of  the  Railroad  Company  and  dealing  with  Hedges,  an  employe 
at  will  and  a  man  of  full  age  and  understanding,  subject  to  no 
restraint  or  disability,  Coppage  insisted  that  Hedges  should 
freely  choose  whether  he  would  leave  the  employ  of  the  Company 
or  would  agree  to  refrain  from  association  with  the  union  while 
so  employed.  This  construction  is,  for  all  purposes  of  our  juris- 
diction, conclusive  evidence  that  the  State  of  Kansas  intends 
by  this  legislation  to  punish  conduct  such  as  that  of  Coppage, 
although  entirely  devoid  of  any  element  of  coercion,  compulsion, 
duress,  or  undue  influence,  just  as  certainly  as  it  intends  to  pun- 
ish coercion  and  the  like.  But,  when  a  party  appeals  to  this 


COPPAGE  v.  STATE  OF  KANSAS.  347 

court  for  the  protection  of  rights  secured  to  him  by  the  Federal 
Constitution,  the  decision  is  not  to  depend  upon  the  form  of  the 
state  law,  nor  even  upon  its  declared  purpose,  but  rather  upon 
its  operation  and  effect  as  applied  and  enforced  by  the  State; 
ami  upon  these  matters  this  court  cannot,  in  the  proper  per- 
formance of  its  duty,  yield  its  judgment  to  that  of  the  state 
court  St.  Louis  S.  W.  Ry.  v.  Arkansas,  235  U.  S.  350,  362, 
and  cases  cited.  Now,  it  seems  to  us  clear  that  a  statutory  pro- 
vision which  is  not  a  legitimate  police  regulation  cannot  be  made 
such  by  being  placed  in  the  same  act  with  a  police  regulation, 
or  by  being  enacted  under  a  title  that  declares  a  purpose  which 
would  be  a  proper  object  for  the  exercise  of  that  power.  "Its 
true  character  cannot  be  changed  by  its  collocation,"  as  Mr. 
Justice  Grier  said  in  the  Passenger  Cases,  7  How.  283,  458.  It 
is  equally  clear,  we  think,  that  to  punish  an  employer  or  his 
agent  for  simply  proposing  certain  terms  of  employment,  under 
circumstances  devoid  of  coercion,  duress,  or  undue  influence, 
has  no  reasonable  relation  to  a  declared  purpose  of  repressing 
coercion,  duress,  and  undue  influence.  Nor  can  a  State,  by  des- 
ignating as  "coercion"  conduct  which  is  not  such  in  truth,  ren- 
der criminal  any  normal  and  essentially  innocent  exercise  of 
personal  liberty  or  of  property  rights;  for  to  permit  this  would 
deprive  the  Fourteenth  Amendment  of  its  effective  force  in  this 
regard.  .  .  . 

Laying  aside,  therefore,  as  immaterial  for  present  purposes, 
so  much  of  the  statute  as  indicates  a  purpose  to  repress  coer- 
cive practices,  what  possible  relation  has  the  residue  of  the  Act 
to  the  public  health,  safety,  morals  or  general  welfare  ?  None  is 
suggested,  and  we  are  unable  to  conceive  of  any.  The  Act,  as 
the  construction  given  to  it  by  the  state  court  shows,  is  intended 
to  deprive  employers  of  a  part  of  their  liberty  of  contract,  to 
the  corresponding  advantage  of  the  employed  and  the  upbuilding 
of  the  labor  organizations.  But  no  attempt  is  made,  or  could 
reasonably  be  made,  to  sustain  the  purpose  to  strengthen  these 
voluntary  organizations,  any  more  than  other  voluntary  asso- 
ciations of  persons,  as  a  legitimate  object  for  the  exercise  of  the 
police  power.  They  are  not  public  institutions,  charged  by  law 
with  public  or  governmental  duties,  such  as  would  render  the 
maintenance  of  their  membership  a  matter  of  direct  concern  to 
the  general  welfare.  If  they  were,  a  different  question  would  be 
presented. 

As  to  the  interest  of  the  employed,  it  is  said  by  tfie  Kansas 
Supreme  Court  (87  Kansas,  p.  759)  to  be  a  matter  of  common 


348  CASES  ON  CONSTITUTIONAL  LAW. 

knowledge  that  "employes,  as  a  rule,  are  not  financially  able 
to  be  as  independent  in  making  contracts  for  the  sale  of  their 
labor  as  are  employers  in  making  contracts  of  purchase  thereof. ' ' 
No  doubt,  wherever  the  right  of  private  property  exists,  there 
must  and  will  be  inequalities  of  fortune;  and  thus  it  naturally 
happens  that  parties  negotiating  about  a  contract  are  not  equally 
unhampered  by  circumstances.  This  applies  to  all  contracts,  and 
not  merely  to  that  between  employer  and  employe.  Indeed  a 
little  reflection  will  show  that  wherever  the  right  of  private  prop- 
erty and  the  right  of  free  contract  co-exist,  each  party  when 
contracting  is  inevitably  more  or  less  influenced  by  the  question 
of  whether  he  has  much  property,  or  little,  or  none ;  for  the  con- 
tract is  made  to  the  very  end  that  each  may  gain  something 
that  he  needs  or  desires  more  urgently  than  that  which  he  pro- 
poses to  give  in  exchange.  And,  since  it  is  self-evident  that, 
unless  all  things  are  held  in  common,  some  persons  must  have 
more  property  than  others,  it  is  from  the  nature  of  things  im- 
possible to  uphold  freedom  of  contract  and  the  right  of  private 
property  without  at  the  same  time  recognizing  as  legitimate 
those  inequalities  of  fortune  that  are  the  necessary  result  of  the 
exercise  of  those  rights.  But  the  Fourteenth  Amendment,  in 
declaring  that  a  State  shall  not  "deprive  any  person  of  life, 
liberty  or  property  without  due  process  of  law,"  gives  to  each 
of  these  an  equal  sanction;  it  recognizes  "liberty"  and  "prop- 
erty" as  co-existent  human  rights,  and  debars  the  States  from 
any  unwarranted  interference  with  either.  .  .  . 

We  need  not  refer  to  the  numerous  and  familiar  cases  in  which 
this  court  has  held  that  the  police  power  may  properly  be  exer- 
cised for  preserving  the  public  health,  safety,  morals,  or  general 
welfare,  and  that  such  police  regulations  may  reasonably  limit 
the  enjoyment  of  personal  liberty,  including  the  right  of  making 
contracts.  .  .  .  An  evident  and  controlling  distinction  is 
this:  that  in  those  cases  it  had  been  held  permissible  for  the 
States  to  adopt  regulations  fairly  deemed  necessary  to  secure 
some  object  directly  affecting  the  public  welfare,  even  though 
the  enjoyment  of  private  rights  of  liberty  and  property  be 
thereby  incidentally  hampered;  while  in  that  portion  of  the 
Kansas  statute  which  is  now  under  consideration — that  is  to  say, 
aside  from  coercion,  etc. — there  is  no  object  or  purpose,  expressed 
or  implied,  that  is  claimed  to  have  reference  to  health,  safety, 
morals,  or  public  welfare,  beyond  the  supposed  desirability  of 
leveling  inequalities  of  fortune  by  depriving  one  who  has  prop- 
erty of  some  part  of  what  is  characterized  as  his  ' '  financial  inde- 


COPPAGE  v.  STATE  OF  KANSAS.  349 

pendence. "...  The  mere  restriction  of  liberty  or  of  prop- 
erty rights  cannot  of  itself  be  denominated  "public  welfare," 
and  treated  as  a  legitimate  object  of  the  police  power ;  for  such 
restriction  is  the  very  thing  that  is  inhibited  by  the  Amend- 
ment. .  .  . 

Of  course  we  do  not  intend  to  say,  nor  to  intimate,  anything 
inconsistent  with  the  right  of  individuals  to  join  labor  unions, 
nor  do  we  question  the  legitimacy  of  such  organizations  so  long 
as  they  conform  to  the  laws  of  the  land  as  others  are  required 
to  do.  Conceding  the  full  right  of  the  individual  to  join  the 
union,  he  has  no  inherent  right  to  do  this  and  still  remain  in  the 
employ  of  one  who  is  unwilling  to  employ  a  union  man,  any 
more  than  the  same  individual  has  a  right  to  join  the  union  with- 
out the  consent  of  that  organization.  Can  it  be  doubted  that  a 
labor  organization — a  voluntary  association  of  working  men — 
has  the  inherent  and  constitutional  right  to  deny  membership 
to  any  man  who  will  not  agree  that  during  such  membership  he 
will  not  accept  or  retain  employment  in  company  with  non- 
union men?  Or  that  a  union  man  has  the  constitutional  right 
to  decline  proffered  employment  unless  the  employer  will  agree 
not  to  employ  any  non-union  men?  .  .  .  And  can  there  be 
one  rule  of  liberty  for  the  labor  organization  and  its  members, 
and  a  different  and  more  restrictive  rule  for  employers?  We 
think  not ;  and  since  the  relation  of  employer  and  employe  is  a 
voluntary  relation,  as  clearly  as  is  that  between  the  members  of  a 
labor  organization,  the  employer  has  the  same  inherent  right  to 
prescribe  the  terms  upon  which  he  will  consent  to  the  relation- 
ship, and  to  have  them  fairly  understood  and  expressed  in  ad- 
vance. .  .  . 

The  liberty  of  making  contracts  does  not  include  a  liberty  to 
procure  employment  from  an  unwilling  employer,  or  without  a 
fair  understanding.  Nor  may  the  employer  be  foreclosed  by, 
legislation  from  exercising  the  same  freedom  of  choice  that  is 
the  right  of  the  employe". 

To  ask  a  man  to  agree,  in  advance,  to  refrain  from  affiliation 
with  the  union  while  retaining  a  certain  position  of  employment, 
is  not  to  ask  him  to  give  up  any  part  of  his  constitutional  free- 
dom. He  is  free  to  decline  the  employment  on  those  terms,  just 
as  the  employer  may  decline  to  offer  employment  upon  any  other ; 
for  ' '  It  takes  -two  to  make  a  bargain. ' '  Having  accepted  employ- 
ment on  those  terms,  the  man  is  still  free  to  join  the  union  when 
the  period  of  employment  expires;  or,  if  employed  at  will,  then 
at  any  time  upon  simply  quitting  the  employment.  And,  if 


350  CASES  ON  CONSTITUTIONAL  LAW. 

bound  by  his  own  agreement  to  refrain  from  joining  during  a 
stated  period  of  employment,  he  is  in  no  different  situation  from 
that  which  is  necessarily  incident  to  term  contracts  in  general. 
For  constitutional  freedom  of  contract  does  not  mean  that  a 
party  is  to  be  as  free  after  making  a  contract  as  before ;  he  is 
not  free  to  break  it  without  accountability.  Freedom  of  con- 
tract, from  the  very  nature  of  the  thing,  can  be  enjoyed  only  by 
being  exercised ;  and  each  particular  exercise  of  it  involves  mak- 
ing an  engagement  which,  if  fulfilled,  prevents  for  the  time  any 
inconsistent  course  of  conduct.  .  .  . 

Judgment  reversed.    .    .     . 

MR.  JUSTICE  HOLMES,  dissenting.     .     .     . 
MR.  JUSTICE  DAY,  with  whom  MR.  JUSTICE  HUGHES  concurs, 
dissenting.     .     .     . 

NOTE.— Accord:  United  States  v.  Scott  (1906),  148  Fed.  431;  Goldfield 
Consolidated  Mines  Co.  v.  Goldfield  Miners'  Union  (1908),  159  Fed.  500; 
State  v.  Julow  (1895),  129  Mo.  163;  State  ex  rel.  Zillmer  v.  Kreutzberg 
(1902),  114  Wis.  530;  State  ex  rel.  Smith  v.  Daniels  (1912),  118  Minn. 
155;  In  re  Berger  (1912),  33  Ohio  C.  C.  289. 


CHAPTER  IX. 
THE  EQUAL  PROTECTION  OF  THE  LAWS. 

No  State  shall    .    .    .    deny   to   any  person   within   its  juris- 
diction the  equal  protection  of  the  laws. 

Constitution  of  the  United  States,  Amendment  XIV,  tee  1. 

SECTION  1.    RACE  DISCRIMINATION. 

STRAUDER  v.  WEST  VIRGINIA. 

SUPREME  COURT  or  THE  UNITED  STATES.    1879. 
100  U.  8.  303;  25  Lawyers'  Ed.  664. 

Error  to  the  Supreme  Court  of  Appeals  of  the  State  of  West 
Virginia. 

[The  plaintiff  in  error,  a  colored  man,  was  indicted  for  murder 
in  the  Circuit  Court  of  Ohio  County,  in  West  Virginia,  on  the 
20th  of  October,  1874,  and  upon  trial  was  convicted  and  sen- 
tenced, and  his  conviction  was  affirmed  by  the  Supreme  Court  of 
the  State.  The  present  case  is  a  writ  of  error  to  that  court,  the 
chief  assignment  of  error  being  that  the  prisoner  was  convicted 
without  due  process  of  law  since  the  laws  of  West  Virginia 
excluded  the  members  of  his  race  from  jury  service.] 

MB.  JUSTICE  STRONG  delivered  the  opinion  of  the  court.    .    .    . 

In  this  court,  several  errors  have  been  assigned,  and  the  con- 
trolling questions  underlying  them  all  are,  first,  whether,  by  the 
Constitution  and  laws  of  the  United  States,  every  citizen  of  the 
United  States  has  a  right  to  a  trial  of  an  indictment  against  him 
by  a  jury  selected  and  impaneled  without  discrimination  against 
his  race  or  color,  because  of  race  or  color ;  and,  second,  if  he  has 
such  a  right,  and  is  denied  its  enjoyment  by  the  State  in  which 
he  is  indicted,  may  he  cause  the  case  to  be  removed  into  the  Cir- 
cuit Court  of  the  United  States? 

It  is  to  be  observed  that  the  first  of  these  questions  is  not 
whether  a  colored  man,  when  an  indictment  has  been  prefer n  <1 
against  him,  has  a  right  to  a  grand  or  a  petit  jury  composed  in 
whole  or  in  part  of  persons  of  his  own  race'  or  color,  but  it  is 

35il 


352  CASES  ON  CONSTITUTIONAL  LAW. 

whether,  in  the  composition  or  selection  of  jurors  by  whom  he 
is  to  be  indicted  or  tried,  all  persons  of  his  race  or  color  may  be 
excluded  by  law,  solely  because  of  their  race  or  color,  so  that  by 
no  possibility  can  any  colored  man  sit  upon  the  jury.  .  .  . 

This  [the  Fourteenth  Amendment]  is  one  of  a  series  of  consti- 
tutional provisions  having  a  common  purpose ;  namely,  securing 
to  a  race  recently  emancipated,  a  race  that  through  many  gener- 
ations had  been  held  in  slavery,  all  the  civil  rights  that  the  supe- 
rior race  enjoy.  The  true  spirit  and  meaning  of  the  amend- 
ments, as  we  said  in  the  Slaughter-House  Cases  (16  Wall.  36), 
cannot  be  understood  without  keeping  in  view  the  history  of  the 
times  when  they  were  adopted,  and  the  general  objects  they 
plainly  sought  to  accomplish.  At  the  time  when  they  were  incor- 
porated into  the  Constitution,  it  required  little  knowledge  of 
human  nature  to  anticipate  that  those  who  had  long  been 
regarded  as  an  inferior  and  subject  race  would,  when  suddenly 
raised  to  the  rank  of  citizenship,  be  looked  upon  with  jealousy 
and  positive  dislike,  and  that  State  laws  might  be  enacted  or 
enforced  to  perpetuate  the  distinctions  that  had  before  existed. 
Discriminations  against  them  had  been  habitual.  It  was  well 
known  that  in  some  States  laws  making  such  discriminations 
then  existed,  and  others  might  well  be  expected.  The  colored 
race,  as  a  race,  was  abject  and  ignorant,  and  in  that  condition 
was  unfitted  to  command  the  respect  of  those  who  had  superior 
intelligence.  Their  training  had  left  them  mere  children,  and 
as  such  they  needed  the  protection  which  a  wise  government 
extends  to  those  who  are  unable  to  protect  themselves.  They 
especially  needed  protection  against ,  unfriendly  action  in  the 
States  where  they  were  resident.  It  was  in  view  of  these  con- 
siderations the  Fourteenth  Amendment  was  framed  and  adopted. 
It  was  designed  to  assure  to  the  colored  race  the  enjoyment  of 
all  the  civil  rights  that  under  the  law  are  enjoyed  by  white  per- 
sons, and  to  give  to  that  race  the  protection  of  the  general  gov- 
ernment, in  that  enjoyment,  whenever  it  should  be  denied  by 
the  States.  It  not  only  gave  citizenship  and  the  privileges  of 
citizenship  to  persons  of  color,  but  it  denied  to  any  State  the 
power  to  withhold  from  them  the  equal  protection  of  the  laws, 
and  authorized  Congress  to  enforce  its  provisions  by  appropriate 
legislation.  .  .  .  [Here  follow  citations  from  the  Slaugh- 
ter-House Cases,  16  Wallace,  36.] 

If  this  is  the  spirit  and  meaning  of  the  amendment,  whether 
it  means  more  or  not,  it  is  to  be  construed  liberally,  to  carry  out 
the  purposes  of  its  framers.  It  ordains  that  no  State  shall  make 


STRAUDER  v.  WEST  VIRGINIA.  353 

or  enforce  any  laws  which  shall  abridge  the  privileges  or  immuni- 
ties of  citizens  of  the  United  States  (evidently  referring  to  the 
newly  made  citizens,  who,  being  citizens  of  the  United  States, 
are  declared  to  be  also  citizens  of  the  State  in  which  they  reside). 
It  ordains  that  no  State  shall  deprive  any  person  of  life,  liberty, 
or  property,  without  due  process  of  law,  or  deny  to  any  person 
within  its  jurisdiction  the  equal  protection  of  the  laws.  What 
is  this  but  declaring  that  the  law  in  the  States  shall  be  the  same 
for  the  black  as  for  the  white ;  that  all  persons,  whether  colored 
or  white,  shall  stand  equal  before  the  laws  of  the  States,  and,  in 
regard  to  the  colored  race,  for  whose  protection  the  amendment 
was  primarily  designed,  that  no  discrimination  shall  be  made 
against  them  by  law  because  of  their  color?  The  words  of  the 
amendment,  it  is  true,  are  prohibitory,  but  they  contain  a  neces- 
sary implication  of  a  positive  immunity,  or  right,  most  valuable 
to  the  colored  race, — the  right  to  exemption  from  unfriendly  leg- 
islation against  them  distinctively  as  colored, — exemption  from 
legal  discriminations,  implying  inferiority  in  civil  society,  lessen- 
ing the  security  of  their  enjoyment  of  the  rights  which  others 
enjoy,  and  discriminations  which  are  steps  towards  reducing 
them  to  the  condition  of  a  subject  race. 

That  the  West  Virginia  statute  respecting  juries — the  statute 
that  controlled  the  selection  of  the  grand  and  petit  jury  in  the 
case  of  the  plaintiff  in  error — is  such  a  discrimination  ought  not 
to  be  doubted.  Nor  would  it  be  if  the  persons  excluded  by  it 
were  white  men.  If  in  those  States  where  the  colored  people 
constitute  a  majority  of  the  entire  population  a  law  should  be 
enacted  excluding  all  white  men  from  jury  service,  thus  denying 
to  them  the  privilege  of  participating  equally  with  the  blacks 
in  the  administration  of  justice,  we  apprehend  no  one  would  be 
heard  to  claim  that  it  would  not  be  a  denial  to  white  men  of  the 
equal  protection  of  the  laws.  Nor  if  a  law  should  be  passed 
excluding  all  naturalized  Celtic  Irishmen,  would  there  be  any 
doubt  of  its  inconsistency  with  the  spirit  of  the  amendment. 
The  very  fact  that  colored  people  are  singled  out  and  expressly 
denied  by  a  statute  all  right  to  participate  in  the  administration 
of  the  law,  as  jurors,  because  of  their  color,  though  they  are 
oitixens,  and  may  be  in  other  respects  fully  qualified,  is  prac- 
tically a  brand  upon  them,  affixed  by  the  law,  an  assertion  of 
their  inferiority,  and  a  stimulant  to  that  race  prejudice  which  is 
nn  impediment  to  securing  to  individuals  of  the  race  that  equal 
justice  which  the  law  aims  to  secure  to  all  others. 

The  right  to  a  trial  by  jury  is  guaranteed  to  every  citizen  of 

B.C.  u— » 


354  CASES  ON  CONSTITUTIONAL  LAW. 

West  Virginia  by  the  Constitution  of  that  State,  and  the  consti- 
tution of  juries  is  a  very  essential  part  of  the  protection  such  a 
mode  of  trial  is  intended  to  secure.  The  very  idea  of  a  jury  is  a 
body  of  men  composed  of  the  peers  or  equals  of  the  person  whose 
rights  it  is  selected  or  summoned  to  determine;  that  is,  of  his 
neighbors,  fellows,  associates,  persons  having  the  same  legal 
status  in  society  as  that  which  he  holds.  Blackstone,  in  his  Com- 
mentaries, says,  "The  right  of  trial  by  jury,  or  the  country,  is 
a  trial  by  the  peers  of  every  Englishman,  and  is  the  grand  bul- 
wark of  his  liberties,  and  is  secured  to  him  by  the  Great  Char- 
ter." It  is  also  guarded  by  statutory  enactments  intended  to 
make  impossible  what  Mr.  Bentham  called  ' 'packing  juries. ' '  It 
is  well  known  that  prejudices  often  exist  against  particular 
classes  in  the  community,  which  sway  the  judgment  of  jurors,  and 
which,  therefore,  operate  in  some  cases  to  deny  to  persons  of 
those  classes  the  full  enjoyment  of  that  protection  which  others 
enjoy.  Prejudice  in  a  local  community  is  held  to  be  a  reason 
for  a  change  of  venue.  The  f ramers  of  the  constitutional  amend- 
ment must  have  known  full  well  the  existence  of  such  prejudice 
and  its  likelihood  to  continue  against  the  manumitted  slaves  and 
their  race,  and  that  knowledge  was  doubtless  a  motive  that  led 
to  the  amendment.  By  their  manumission  and  citizenship  the 
colored  race  became  entitled  to  the  equal  protection  of  the  laws 
of  the  States  in  which  they  resided ;  and  the  apprehension  that 
through  prejudice  they  might  be  denied  that  equal  protection, 
that  is,  that  there  might  be  discrimination  against  them,  was 
the  inducement  to  bestow  upon  the  national  government  the 
power  to  enforce  the  provision  that  no  State  shall  deny  to  them 
the  equal  protection  of  the  laws.  Without  the  apprehended 
existence  of  prejudice  that  portion  of  the  amendment  would  have 
been  unnecessary,  and  it  might  have  been  left  to  the  States  to 
extend  equality  of  protection. 

In  view  of  these  considerations,  it  is  hard  to  see  why  the 
statute  of  West  Virginia  should  not  be  regarded  as  discriminat- 
ing against  a  colored  man  when  he  is  put  upon  trial  for  an 
alleged  criminal  offense  against  the  State.  It  is  not  easy  to 
comprehend  how  it  can  be  said  that  while  every  white  man  is 
entitled  to  a  trial  by  a  jury  selected  from  persons  of  his  own  race 
or  color,  or,  rather,  selected  without  discrimination  against  his 
color,  and  a  negro  is  not,  the  latter  is  equally  protected  by  the 
law  with  the  former.  Is  not  protection  of  life  and  liberty 
against  race  or  color  prejudice  a  right,  a  legal  right,  under  the 
constitutional  amendment  ?  And  how  can  it  be  maintained  that 


STRAUDER  v.  WEST  VIRGINIA  355 

compelling  a  colored  man  to  submit  to  a  trial  for  his  life  by  a 
jury  drawn  from  a  panel  from  which  the  State  has  expressly 
excluded  every  man  of  his  race,  because  of  color  alone,  however 
well  qualified  in  other  respects,  is  not  a  denial  to  him  of  equal 
legal  protection  f 

We  do  not  say  that  within  the  limits  from  which  it  is  not 
excluded  by  the  amendment,  a  State  may  not  prescriiie  the 
qualifications  of  its  jurors,  and  in  so  doing  make  discriminations. 
It  may  confine  the  selection  to  males,  to  freeholders,  to  citizens, 
to  persons  within  certain  ages,  or  to  persons  having  educational 
qualifications.  We  do  not  believe  the  Fourteenth  Amendment 
was  ever  intended  to  prohibit  this.  Looking  at  its  history,  it  is 
clear  it  had  no  such  purpose.  Its  aim  was  against  discrimina- 
tion because  of  race  or  color.  As  we  have  said  more  than  once, 
its  design  was  to  protect  an  emancipated  race,  and  to  strike 
down  all  possible  legal  discriminations  against  those  who  belong 
to  it.  To  quote  further  from  16  Wall,  supra:  "In  giving  con- 
struction to  any  of  these  articles  [amendments],  it  is  necessary 
to  keep  the  main  purpose  steadily  in  view."  "It  is  so  clearly  a 
provision  for  that  race  and  that  emergency,  that  a  strong  case 
would  be  necessary  for  its  application  to  any  other."  We  are 
not  now  called  upon  to  affirm  or  deny  that  it  had  other  pur- 

JH.s.'S. 

The  Fourteenth  Amendment  makes  no  attempt  to  enumerate 
the  rights  it  designed  to  protect.  It  speaks  in  general  terms, 
and  those  are  as  comprehensive  as  possible.  Its  language  is  pro- 
hibitory; but  every  prohibition  implies  the  existence  of  rights 
and  immunities,  prominent  among  which  is  an  immunity  from 
inequality  of  legal  protection,  either  for  life,  liberty,  or  prop- 
erty. Any  State  action  that  denies  this  immunity  to  a  colored 
man  is  in  conflict  with  the  Constitution.  .  .  . 

The  judgment  of  the  Supreme  Court  of  West  Virginia  will  be 
reversed,  and  the  case  remitted  with  instructions  to  reverse  the 
judgment  of  the  Circuit  Court  of  Ohio  County :  and  it  is 

So  ordered. 

[MR.  JUSTICE  FIELD  and  MR.  JUSTICE  CLIFFORD  dissented.] 

NOTE. — While  an  acetified  person  is  entitled  to  a  jnry  from  which  the 
members  of  his  rare  have  not  been  excluded  by  law,  he  in  not  entitled  to  a 
trial  by  a  jury  of  his  own  race.  Virginia  v.  Rires  (1880),  100  U.  8.  313; 
Martin  v.  Texas  (1906),  200  U.  8.  316.  An  act  valid  on  its  face  may  be 
so  administered  as  to  be  obnoxious  to  the  Fourteenth  Amendment.  Ex 
parte  Virginia  (1880),  100  U.  8.  339.  As  to  various  forms  of  race  dis- 
crimination see  Plessy  T.  Ferguson  (1896),  163  U.  8.  537;  Chiles  v.  Chesa 


356  CASES  ON  CONSTITUTIONAL  LAW. 

peake  &  Ohio  Ky.  (1910),  218  TJ.  S.  71;  McCabe  v.  A.  T.  &  S.  F.  Ey.  (1914), 
235  U.  S.  151  (separate  but  equal  accommodations  in  railway  trains) ; 
Berea  College  v.  Kentucky  (1908),  211  U.  S.  45  (prohibiting  private  educa- 
tional institutions  from  teaching  blacks  and  whites  at  the  same  time  and 
place)  ;  Li  Sing  v.  United  States  (1901),  180  U.  S.  486  (discrimination 
against  the  Chinese  as  witnesses);  Pace  v.  Alabama  (1883),  106  U.  S.  583 
(punishing  fornication  committed  by  persons  of  different  races  more  severely 
than  when  committed  by  persons  of  the  same  race). 


TICK  WO  v.  HOPKINS. 

SUPREME  COURT  OP  THE  UNITED  STATES.    1886. 
118  U.  S.  356;  30  Lawyers'  Ed.  220. 

Error  to  the  Supreme  Court  of  the  State  of  California. 

[The  board  of  supervisors  of  San  Francisco  enacted  an  ordi- 
nance providing  that  no  one  should  carry  on  a  laundry  "within 
the  corporate  limits  of  the  city  and  county  of  San  Francisco 
without  having  first  obtained  the  consent  of  the  board  of  super- 
visors, except  the  same'  be  located  in  a  building  constructed 
either  of  brick  or  stone."  Yick  Wo,  a  subject  of  the  Emperor 
of  China,  petitioned  for  a  license  to  carry  on  a  laundry  in  the 
same  building  in  which  he  had  been  doing  so  for  twenty-two 
years.  His  application  was  refused,  and  he  was  then  arrested 
and  fined  for  continuing  in  business  without  the  necessary 
license.  It  was  admitted  that  all  applications  for  a  license  made 
by  Chinese  persons,  more  than  200  in  number,  were  refused, 
while  the  petitions  of  all-  others,  with  one  exception,  were 
granted.] 

MR.  JUSTICE  MATTHEWS  delivered  the  opinion  of  the 
court.  .  .  . 

The  ordinance  drawn  in  question  in  the  present  case  . 
does  not  prescribe  a  rule  and  conditions  for  the  regulation  of  the 
use  of  property  for  laundry  purposes,  to  which  all  similarly 
situated  may  conform.  It  allows  without  restriction  the  use  for 
such  purposes  of  buildings  of  brick  or  stone ;  but,  as  to  wooden 
buildings,  constituting  nearly  all  those  in  previous  use,  it  divides 
the  owners  or  occupiers  into  two  classes,  not  having  respect  to 
their  personal  character  and  qualifications  for  the  business,  nor 
the  situation  and  nature  and  adaptation  of  the  buildings  them- 
selves, but  merely  by  an  arbitrary  line,  on  one  side  of  which  are 


VICE  WO  v.  HOPKINS.  357 

those  who  are  permitted  to  pursue  their  industry  by  the  mere 
will  and  consent  of  the  supervisors,  and  on  the  other  those  from 
whom  that  consent  is  withheld,  at  their  mere  will  and  pleasure. 
And  both  classes  are  alike  only  in  this,  that  they  are  tenants  at 
will,  under  the  supervisors,  of  their  means  of  living.  The  ordi- 
nance, therefore,  also  differs  from  the  not  unusual  case,  where 
discretion  is  lodged  by  law  in  public  officers  or  bodies  to  grant 
or  withhold  licenses  to  keep  taverns,  or  places  for  the  sale  of 
spirituous  liquors,  and  the  like,  when  one  of  the  conditions  is  that 
the  applicant  shall  be  a  fit  person  for  the  exercise  of  the  privilege, 
because  in  such  cases  the  fact  of  fitness  is  submitted  to  the  judg- 
ment of  the  officer,  and  calls  for  the  exercise  of  a  discretion  of  a 
judicial  nature. 

The  rights  of  the  petitioners,  as  affected  by  the  proceedings  of 
which  they  complain,  are  not  less,  because  they  are  aliens  and 
subjects  of  the  Emperor  of  China.  . 

The  Fourteenth  Amendment  to  the  Constitution  is  not  confined 
to  the  protection  of  citizens.  It  says:  "Nor  shall  any  State 
deprive  any  person  of  life,  liberty,  or  property  without  due 
process  of  law;  nor  deny  to  any  person  within  its  jurisdiction 
the  equal  protection  of  the  laws."  These  provisions  are  univer- 
sal in  their  application,  to  all  persons  within  the  territorial  juris- 
diction, without  regard  to  any  difference  of  race,  or  color,  or  of 
nationality,  and  the  equal  protection  of  the  laws  is  a  pledge  of 
the  protection  of  equal  laws.  . 

It  is  contended  on  the  part  of  the  petitioners,  that  the  ordi- 
nances for  violations  of  which  they  are  severally  sentenced  to 
imprisonment,  are  void  on  their  face,  as  being  within  the  prohi- 
bitions of  the  Fourteenth  Amendment;  and,  in  the  alternative,  if 
not  so,  that  they  are  void  by  reason  of  their  administration, 
operating  unequally,  so  as  to  punish  in  the  present  petitioners 
what  is  permitted  to  others  as  lawful,  without  any  distinction  of 
circumstances — an  unjust  and  illegal  discrimination,  it  is 
claimed,  which,  though  not  made  expressly  by  the  ordinances,  is 
made  possible  by  them. 

When  we  consider  the  nature  and  the  theory  of  our  institutions 
of  government,  the  principles  upon  which  they  are  supposed  to 
rest,  and  review  the  history  of  their  development,  we  are  con- 
strained to  conclude  that  they  do  not  mean  to  leave  room  for 
the  play  and  action  of  purely  personal  and  arbitrary  power. 
Sovereignty  itself  is,  of  course,  not  subject  to  law,  for  it  is  the 
author  and  source  of  law;  but  in  our  system,  while  sovereign 
powers  are  delegated  to  the  agencies  of  government,  sovereignty 


358  CASES  ON  CONSTITUTIONAL  LAW. 

itself  remains  with  the  people,  by  whom  and  for  whom  all  gov- 
ernment exists  and  acts.  And  the  law  is  the  definition  and  limi- 
tation of  power.  It  is,  indeed,  quite  true,  that  there  must  always 
be  lodged  somewhere,  and  in  some  person  or  body,  the  authority 
of  final  decision ;  and  in  many  cases  of  mere  administration  the 
responsibility  is  purely  political,  no  appeal  lying  except  to  the 
ultimate  tribunal  of  the  public  judgment,  exercised  either  in  the 
pressure  of  opinion  or  by  means  of  the  suffrage.  But  the  funda- 
mental rights  to  life,  liberty,  and  the  pursuit  of  happiness,  con- 
sidered as  individual  possessions,  are  secured  by  those  maxims 
of  constitutional  law  which  are  the  monuments  showing  the  vic- 
torious progress  of  the  race  in  securing  to  men  the  blessings  of 
civilization  under  the  reign  of  just  and  equal  laws,  so  that,  in 
the  famous  language  of  the  Massachusetts  Bill  of  Rights,  the 
government  of  the  commonwealth  "may  be  a  government  of 
laws  and  not  of  men."  For,  the  very  idea  that  one  man  may 
be  compelled  to  hold  his  life,  or  the  means  of  living,  or  any 
material  right  essential  to  the  enjoyment  of  life,  at  the  mere  will 
of  another,  seems  to  be  intolerable  in  any  country  where'  freedom 
prevails,  as  being  the  essence  of  slavery  itself.  . 

In  the  present  cases  we  are  not  obliged  to  reason  from  the 
probable  to  the  actual,  and  pass  upon  the  validity  of  the  ordi- 
nances complained  of,  as  tried  merely  by  the  opportunities  which 
their  terms  afford,  of  unequal  and  unjust  discrimination  in  their 
administration.  For  the  cases  present  the  ordinances  in  actual 
operation,  and  the  facts  shown  establish  an  administration 
directed  so  exclusively  against  a  particular  class  of  persons  as 
to  warrant  and  require  the  conclusion  that,  whatever  may  have 
been  the  intent  of  the  ordinances  as  adopted,  they  are  applied 
by  the  public  authorities  charged  with  their  administration,  and 
thus  representing  the  State  itself,  with  a  mind  so  unequal  and 
oppressive  as  to  amount  to  a  practical  denial  by  the  State  of 
that  equal  protection  of  the  laws  which  is  secured  to  the  petition- 
ers, as  to  all  other  persons,  by  the  broad  and  benign  provisions 
of  the  Fourteenth  Amendment  to  the  Constitution  of  the  United 
States.  Though  the  law  itself  be  fair  on  its  face  and  impartial 
in  appearance,  yet,  if  it  is  applied  and  administered  by  public 
authority  with  an  evil  eye  and  an  unequal  hand,  so  as  practically 
to  make  unjust  and  illegal  discriminations  between  persons  in 
similar  circumstances,  material  to  their  rights,  the  denial  of 
equal  justice  is  still  within  the  prohibition  of  the  Constitution. 
This  principle  of  interpretation  has  been  sanctioned  by  this 
court  in  Henderson  v.  Mayor  of  New  York,  92  U.  S.  259 ;  Chy 


YICK  WO  v.  HOPKINS.  359 

Lung  v.  Freeman,  92  U.  S.  275;  Ex  parte  Virginia,  100  U.  S. 
339;  Neal  v.  Delaware,  103  U.  S.  370;  and  Soon  lling  v.  Crow- 
ley,  113  U.  S.  703. 

The  present  cases,  as  shown  by  the  facts  disclosed  in  the  record, 
are  within  this  class.  It  appears  that  both  petitioners  have  com- 
plied with  every  requisite,  deemed  by  the  law  or  by  the  public 
officers  charged  with  its  administration,  necessary  for  the  pro- 
tection of  neighboring  property  from  fire,  or  as  a  precaution 
against  injury  to  the  public  health.  No  reason  whatever,  except 
the  will  of  the  supervisors,  is  assigned  why  they  should  not  be 
permitted  to  carry  on,  in  the  accustomed  manner,  their  harmless 
and  useful  occupation,  on  which  they  depend  for  a  livelihood. 
And  while  this  consent  of  the  supervisors  is  withheld  from  them 
and  from  two  hundred  others  who  have  also  petitioned,  all  of 
whom  happen  to  be  Chinese  subjects,  eighty  others,  not  Chinese 
subjects,  are  permitted  to  carry  on  the  same  business  under  sim- 
ilar conditions.  The  fact  of  this  discrimination  is  admitted.  No 
reason  for  it  is  shown,  and  the  conclusion  cannot  be  resisted, 
that  no  reason  for  it  exists  except  hostility  to  the  race  and  nation- 
ality to  which  the  petitioners  belong,  and  which  in  the  eye  of 
the  law  is  not  justified.  The  discrimination  is,  therefore,  illegal, 
and  the  public  administration  which  enforces  it  is  a  denial  of  the 
equal  protection  of  the  laws,  and  a  violation  of  the  Fourteenth 
Amendment  of  the  Constitution.  The  imprisonment  of  the  peti- 
tioners is,  therefore,  illegal,  and  they  must  be  discharged.  To 
this  end, 

The  judgment  of  the  Supreme  Court  of  California  in  the  case 
of  Yick  Wo,  and  that  of  the  Circuit  Court  of  the  United  States 
for  the  District  of  California  in  the  case  of  Wo  Lee,  are  severally 
reversed,  and  the  cases  remanded,  each  to  the  proper  court,  with 
directions  to  discharge  the  petitioners  from  custody  and  impris- 
onment. 

NOTE. — Indians  are  entitled  to  the  protection  of  the  guaranties  of  the 
Constitution  to  the  same  extent  as  are  other  residents  or  citizens  of  the 
United  States.  Jones  v.  Meehan  (1899),  175  U.  8.  1;  Cherokee  Nation  v. 
Hitchcock  (1902),  187  U.  8.  294;  In  re  Heff  (1905),  197  U.  8.  488;  Choate 
v.  Trapp  (1912),  224  U.  8.  665.  Corporations  are  persons  within  the  mean- 
ing of  the  Fourteenth  Amendment.  Santa  Clara  County  v.  Southern  Pacific 
Ry.  (1886),  118  U.  8.  396;  Gulf,  Colo,  ft  Santa  Fe  Ry.  v.  Ellis  (1897),  165 
U.  8.  150;  but  compare,  as  to  foreign  corporations,  Blake  v.  McClung 
(1898),  17  '.9.  As  to  municipal  corporations,  see  Hunter  v.  Pitta- 

burgh  (1907),  207  U.  8.  161. 


360  CASES  ON  CONSTITUTIONAL  LAW. 

SECTION  2.    LEGISLATION  FOR  CLASSES. 

BARBIER  v.  CONNOLLY. 

SUPREME  COURT  OF  THE  UNITED  STATES.    1885. 
113  U.  S.  27;  28  Lawyers'  Ed.  923. 

In  error  to  the  Superior  Court  of  the  city  and  county  of  San 
Francisco,  State  of  California. 

[The  Board  of  Supervisors  of  the  city  and  county  of  San 
Francisco,  the  legislative  authority  of  that  municipality,  believ- 
ing that  the  indiscriminate  establishment  of  public  laundries 
endangered  the  public  health  and  the  public  safety,  enacted 
ordinances,  the  fourth  section  of  which  provided  that  no  person 
owning  or  employed  in  a  public  laundry  within  certain  pre- 
scr^bed  limits  should  wash  or  iron  clothes  between  the  hours  of 
ten  in  the  evening  and  six  in  the  morning,  or  upon  any  portion 
of  Sunday.  The  petitioner,  having  been  convicted  of  a  violation 
of  the  fourth  section  and  committed  to  the  county  jail,  moved 
for  his  discharge  on  the  ground  that  the  fourth  section  was  in 
conflict  with  the  Fourteenth  Amendment  to  the  Federal  Consti- 
tution in  that  it  discriminated  between  laborers  engaged  in  the 
laundry  business  and  those  engaged  in  other  kinds  of  business, 
and  between  laborers  beyond  the  designated  limits  and  those 
within  them,  and  that  it  deprived  the  petitioner  of  the  right  to 
labor  and  hence  of  the  right  to  acquire  property,  and  that  it 
was  unreasonable  in  its  requirements  and  beyond  the  powers  of 
the  Board  of  Supervisors.] 

MR.  JUSTICE  FIELD  delivered  the  opinion  of  the  court.    . 

In  this  case  we  can  only  consider  whether  the  fourth  section  of 
the  ordinance  of  the  city  and  county  of  San  Francisco  is  in  con- 
flict with  the  Constitution  or  laws  of  the  United  States.  We  can- 
not pass  upon  the  conformity  of  that  section  with  the  require- 
ments of  the  Constitution  of  the  State.  Our  jurisdiction  is  con- 
fined to  a  consideration  of  the  federal  question  involved,  which 
arises  upon  an  alleged  conflict  of  the  fourth  section  in  question 
with  the  first  section  of  the  Fourteenth  Amendment  of  the  Consti- 
tution of  the  United  States.  No  other  part  of  the  amendment 
has  any  possible  application. 

That  fourth  section,  so  far  as  it  is  involved  in  the  case  before 
the  police  judge,  was  simply  a  prohibition  to  carry  on  the  wash- 
ing and  ironing  of  clothes  in  public  laundries  and  wash-houses, 


N  BARRIER  v.  CONNOLLY.  361 

within  certain  prescribed  limits  of  the  city  and  county,  from  ten 
o'clock  at  night  until  •six  o'clock  in  the  morning  of  the  following 
day.  The  prohibition  against  labor  on  Sunday  is  not  involved. 
The  provision  is  purely  a  police  regulation  within  the  compe- 
tency of  any  municipality  possessed  of  the  ordinary  powers  be- 
longing to  such  bodies.  And  it  would  be  an  extraordinary 
usurpation  of  the  authority  of  a  municipality,  if  a  federal 
tribunal  should  undertake  to  supervise  such  regulations.  It  may 
be  a  necessary  measure  of  precaution  in  a  city  composed  largely 
of  wooden  buildings  like  San  Francisco,  that  occupations,  in 
which  fires  are  constantly  required,  should  cease  after  certain 
hours  at  night  until  the  following  morning ;  and  of  the  necessity 
of  such  regulations  the  municipal  bodies  are  the  exclusive  judges ; 
at  l«-;ust  any  correction  of  their  action  in  such  matters  can  come 
only  from  State  legislation  or  State  tribunals.  The  same  munici- 
pal authority  which  directs  the  cessation  of  labor  must  neces- 
sarily prescribe  the  limits  within  which  it  shall  be  enforced,  as  it 
does  the  limits  in  a  city  within  which  wooden  buildings  cannot 
be  constructed.  There  is  no  invidious  discrimination  against 
any  one  within  the  prescribed  limits  by  such  regulations.  Thriv 
is  none  in  the  regulation  under  consideration.  The  specification 
of  the  limits  within  which  the  business  cannot  be  carried  on 
without  the  certificates  of  the  health  officer  and  Board  of  Fire 
Wardens  is  merely  a  designation  of  the  portion  of  the  city  in 
which  the  precautionary  measures  against  fire  and  to  secure 
proper  drainage  must  be  taken  for  the  public  health  and  safety. 
It  is  not  legislation  discriminating  against  any  one.  All  persons 
engaged  in  the  same  business  within  it  are  treated  alike;  are 
subject  to  the  same  restrictions  and  are  entitled  to  the  same 
privileges  under  similar  conditions. 

The  Fourteenth  Amendment,  in  declaring  that  no  State  "shall 
deprive  any  person  of  life,  liberty,  or  property  without  due 
process  of  law,  nor  deny  to  any  person  within  its  jurisdiction  the 
equal  protection  of  the  laws,"  undoubtedly  intended  not  only 
that  there  should  be  no  arbitrary  deprivation  of  life  or  liberty, 
or  arbitrary  spoliation  of  property,  but  that  equal  protection 
and  security  should  be  given  to  all  under  like  circumstances  in 
the  enjoyment  of  their  personal  and  civil  rights ;  that  all  persons 
should  be  equally  entitled  to  pursue  their  happiness  and  acquire 
»unl  enjoy  property;  that  they  should  have  like  access  to  the 
courts  of  the  country  for  the  protection  of  their  persons  and 
property,  the  prevention  and  redress  of  wrongs,  and  the  enforce- 


362  CASES  ON  CONSTITUTIONAL  LAW. 

ment  of  contracts;  that  no  impediment  should  be  interposed  to 
the  pursuits  of  any  one  except  as  applied  to  the  same  pursuits 
by  others  under  like  circumstances;  that  no  greater  burdens 
should  be  laid  upon  one  than  are  laid  upon  others  in  the  same 
calling  and  xjondition,  and  that  in  the  administration  of  criminal 
justice  no  different  or  higher  punishment  should  be  imposed  upon 
one  than  such  as  is  prescribed  to  all  for  like  offenses.  But 
neither  the  amendment — broad  and  comprehensive  as  it  is — nor 
any  other  amendment,  was  designed  to  interfere  with  the  power 
of  the  State,  sometimes  termed  its  police  power,  to  prescribe  regu- 
lations to  promote  the  health,  peace,  morals,  education,  and  good 
order  of  the  people,  and  to  legislate  so  as  to  increase  the  indus- 
tries of  the  State,  develop  its  resources,  and  add  to  its  wealth 
and  prosperity.  From  the  very  necessities  of  society,  legislation 
of  a  special  character,  having  these  objects  in  view,  must  often 
be  had  in  certain  districts,  such  as  for  draining  marshes  and  irri- 
gating arid  plains.  Special  burdens  are  often  necessary  for  gen- 
eral benefits — for  supplying  water,  preventing  fires,  lighting  dis- 
tricts, cleaning  streets,  opening  parks,  and  many  other  objects. 
Regulations  for  these  purposes  may  press  with  more  or  less 
weight  upon  one  than  upon  another,  but  they  are  designed,  not 
to  impose  unequal  or  unnecessary  restrictions  upon  any  one,  but 
to  promote,  with  as  little  individual  inconvenience  as  possible, 
the  general  good.  Though,  in  many  respects,  necessarily  special 
in  their  character,  they  do  not  furnish  just  ground  of  complaint 
if  they  operate  alike  upon  all  persons  and  property  under  the 
same  circumstances  and  conditions.  Class  legislation,  discrimi- 
nating against  some  and  favoring  others,  is  prohibited,  but  legis- 
lation which,  in  carrying  out  a  public  purpose,  is  limited  in  its 
application,  if  within  the  sphere  of  its  operation  it  affects  alike 
all  persons  similarly  situated,  is  not  within  the  amendment. 

In  the  execution  of  admitted  powers  unnecessary  proceedings 
are  often  required  which  are  cumbersome,  dilatory,  and  expen- 
sive, yet,  if  no  discrimination  against  any  one  be  made  and  no 
substantial  right  be  impaired  by  them,  they  are  not  obnoxious 
to  any  constitutional  objection.  The  inconveniences  arising  in 
the  administration  of  the  laws  from  this  cause  are  matters  en- 
tirely for  the  consideration  of  the  State;  they  can  be  remedied 
only  by  the  State.  In  the  case  before  us  the  provisions  requiring 
certificates  from  the  health  officer  and  the  Board  of  Fire  War- 
dens may,  in  some  instances,  be  unnecessary,  and  the  changes 
to  be  made  to  meet  the  conditions  prescribed  may  be  burdensome, 


MO.,  KAN.  AND  TKN.  KV.  CO.  v.  MAY.  363 

but,  as  we  have  said,  this  is  a  matter  for  the  determination  of 
the  municipality  in  the  execution  of  its  police  powers,  and  not  a 
violation  of  any  substantial  right  of  the  individual. 

Judgtncnt  affirmed. 


MISSOURI,  KANSAS  AND  TEXAS  RAILWAY  COMPANY 

v.  MAY. 

SUPREME  OOUBT  or  THE  UNITED  STATES.    1904. 
194  U.  8.  267;  48  Lawyers'  Ed.  971. 

Error  to  the  County  Court  of  Bell  County,  State  of  Texas. 

MR.  JUSTICE  HOLMES  delivered  the  opinion  of  the  court. 

This  is  an  action  to  recover  a  penalty  of  twenty-five  dollars, 
brought  by  the  owner  of  a  farm  contiguous  to  the  railroad^  of  the 
plaintiff  in  error,  on  the  ground  that  the  latter  has  allowed 
Johnson  grass  to  mature  and  go  to  seed  upon  its  road.  The  pen- 
alty is  given  to  contiguous  owners  by  a  Texas  statute  of  1901, 
ch.  117,  directed  solely  against  railroad  companies  for  permit- 
ting such  grass  or  Russian  thistle  to  go  to  seed  upon  their  right 
of  way,  subject,  however,  to  the  condition  that  the  plaintiff 
has  not  done  the  same  thing.  The  case  is  brought  here  on  the 
ground  that  the  statute  is  contrary  to  the  Fourteenth  Amend- 
ment of  the  Constitution  of  the  United  States. 

It  is  admitted  that  Johnson  grass  is  a  menace  to  crops,  that 
it  is  propagated  only  by  seed,  and  that  a  general  regulation  of 
it  for  the  protection  of  farming  would  be  valid.  It  is  admitted 
also  that  legislation  may  be  directed  against  a  class  when  any 
fair  ground  for  the  discrimination  exists.  But  it  is  said  that  this 
particular  subjection  of  railroad  companies  to  a  liability  not 
imposed  on  other  owners  of  land  on  which  Johnson  grass  may 
grow  is  so  arbitrary  as  to  amount  to  a  denial  of  the  equal  pro- 
tection of  the  laws.  There  is  no  dispute  about  general  principles. 
The  question  is  whether  this  case  lies  on  one  side  or  the  other  of 
a  line  which  has  to  be  worked  out  between  cases  differing  only 
in  degree.  "With  regard  to  the  manner  in  which  such  a  question 
should  be  approached,  it  is  obvious  that  the  legislature  is  the 
only  judge  of  the  policy  of  a  proposed  discrimination.  The  prin- 
cipli-  is  similar  to  that  whii-h  is  established  with  regard  to  a 
>ion  of  Congress  that  certain  means  are  necessary  and  proper 
to  carry  out  one  of  its  express  powers.  McCulloch  v.  Maryland, 


364  CASES  ON  CONSTITUTIONAL  LAW. 

4  Wheat.  316.  When  a  state  legislature  has  declared  that  in 
its  opinion  policy  requires  a  certain  measure,  its  action  should 
not  be  disturbed  by  the  courts  under  the  Fourteenth  Amendment, 
unless  they  can  see  clearly  that  there  is  no  fair  reason  for  the 
law  that  would  not  require  with  equal  force  its  extension  to 
others  whom  it  leaves  untouched. 

Approaching  the  question  in  this  way,  we  feel  unable  to  say 
that  the  law  before  us  may  not  have  been  justified  by  local  con- 
ditions. It  would  have  been  more  obviously  fair  to  extend  the 
regulation  at  least  to  highways.  But  it  may  have  been  found, 
for  all  that  we  know,  that  the  seed  of  Johnson  grass  is  dropped 
from  the  cars  in  such  quantities  as  to  cause  special  trouble.  It 
may  be  that  the  neglected  strips  occupied  by  railroads  afford  a 
ground  where  noxious  weeds  especially  flourish,  and  that  whereas 
self-interest  leads  the  owners  of  farms  to  keep  down  pests,  the 
railroad  companies  have  done  nothing  in  a  matter  which  con- 
cerns their  neighbors  only.  ^Other  reasons  may  be  imagined. 
Great  constitutional  provisions  must  be  administered  with  cau- 
tion. Some  play  must  be  allowed  for  the  joints  of  the  machine, 
and  it  must  be  remembered  that  legislatures  are  ultimate  guar- 
dians of  the  liberties  and  welfare  of  the  people  in  quite  as  great 
a  degree  as  the  courts.  Judgment  affirmed. 

MB.  JUSTICE  BREWER  concurs  in  the  judgment. 

MR.  JUSTICE  BROWN,  dissenting.     . 

MR.  JUSTICE  WHITE  and  MR.  JUSTICE  MCKENNA  also  dissented. 


CENTRAL  LUMBER  COMPANY  v.  STATE  OF  SOUTH 

DAKOTA. 

SUPREME  COURT  OP  THE  UNITED  STATES.    1912. 
226  U.  S.  157;  57  Lawyers'  Ed.  164. 

Error  to  the  Supreme  Court  of  the  State  of  South  Dakota. 

MR.  JUSTICE  HOLMES  delivered  the  opinion  of  the  court. 

The  plaintiff  in  error  was  found  guilty  of  unfair  discrimina- 
tion under  Session  Laws  of  South  Dakota  for  1907,  c.  131,  and 
was  sentenced  to  a  fine  of  two  hundred  dollars  and  costs.  It 
objected  in  due  form  that  the  statute  was  contrary  to  the  Four- 
teenth Amendment,  but  on  appeal  the  judgment  of  the  trial  court 
was  sustained.  24  So.  Dak.  136.  By  the  statute  anyone  "  En- 
gaged in  the  production,  manufacture  or  distribution  of  any 


CENTRAL  LUMBER  CO.  v.  SOUTH  DAKOTA.      365 

commodity  in  general  use,  that  intentionally,  for  the  purpose 
of  destroying  the  competition  of  any  regular,  established  dealer 
in  such  commodity,  or  to  prevent  the  competition  of  any  per- 
son who  in  good  faith  intends  and  attempts  to  become  such 
dealer,  shall  discriminate  between  different  sections,  communi- 
ties, or  cities  of  this  state,  by  selling  such  commodity  at  a  lower 
rate  in  one  section  .  .  .  than  such  person  .  .  .  charges 
for  such  commodity  in  another  section,  .  .  .  after  equaliz- 
ing the  distance  from  the  point  of  production,"  &c.,  shall  be 
guilty  of  the  crime  and  liable  to  the  fine. 

The  subject-matter,  like  the  rest  of  the  criminal  law,  is  under 
the  control  of  the  legislature  of  South  Dakota,  by  virtue  of  its 
general  powers,  unless  the  statute  conflicts  as  alleged  with  the 
Constitution  of  the  United  States.  The  grounds  on  which  it  is 
said  to  do  so  are  that  it  denies  the  equal  protection  of  the  laws, 
because  it  affects  the  conduct  of  only  a  particular  class — those 
selling  goods  in  two  places  in  the  State — and  is  intended  for  the 
protection  of  only  a  particular  class — regular  established  deal- 
ers ;  and  also  because  it  unreasonably  limits  the  liberty  of  people 
to  make  such  bargains  as  they  like. 

On  the  first  of  these  points  it  is  said  that  an  indefensible  clas- 
sification may  be  disguised  in  the  form  of  a  description  of  the 
act  constituting  the  offense,  and  it  is  urged  that  to  punish  selling 
goods  in  one  place  lower  than  at  another  in  effect  is  to  select  the 
class  of  dealers  that  have  two  places  of  business  for  a  special 
liability,  and  in  real  fact  is  a  blow  aimed  at  those  who  have 
several  lumber  yards  along  a  line  of  railroad,  in  the  interest  of 
independent  dealers.  All  competition,  it  is  added,  imports  an 
attempt  to  destroy  or  prevent  the  competition  of  rivals,  and 
there  is  no  difference  in  principle  between  the  prohibited  act 
and  the  ordinary  efforts  of  traders  at  a  single  place.  The  prem- 
ises  may  be  conceded  without  accepting  the  conclusion  that  this 
is  an  unconstitutional  discrimination.  If  the  legislature  shares 
the  now  prevailing  belief  as  to  what  is  public  policy  and  finds 
that  a  particular  instrument  of  trade  war  is  being  used  against 
that  policy  in  certain  cases,  it  may  direct  its  law  against  what 
it  deems  the  evil  as  it  actually  exists  without  covering  the  whole 
field  of  possible  abuses,  and  it  may  do  so  none  the  less  that  the 
forbidden  act  does  not  differ  in  kind  from  those  that  are  allowed. 
Limlsley  v.  Natural  Carbonic  Gas  Co.,  220  U.  S.  61,  81 :  Missouri 
Pacific  Ry.  Co.  v.  Mackey,  127  U.  S.  205. 

This  is  not  the  arbitrary  selection  that  is  condemned  in  such 
cases  as  Southern  Ry.  Co.  v.  Greene,  216  U.  S.  400.  The  Four- 


366  CASES  ON  CONSTITUTIONAL  LAW. 

teenth.  Amendment  does  not  prohibit  legislation  special  in  char- 
acter. Magoun  v.  Illinois  Trust  &  Savings  Bank,  170  U.  S.  283, 
294.  It  does  not  prohibit  a  State  from  carrying  out  a  policy  that 
cannot  be  pronounced  purely  arbitrary,  by  taxation  or  penal 
laws.  Orient  Insurance  Co.  v.  Daggs,  172  U.  S.  557,  562 ;  Quong 
Wing  v.  Kirkendall,  223  U.  S.  59,  62.  If  a  class  is  deemed  to 
present  a  conspicuous  example  of  what  the  legislature  seeks  to 
prevent,  the  Fourteenth  Amendment  allows  it  to  be  dealt  with 
although  otherwise  and  merely  logically  not  distinguishable 
from  others  not  embraced  in  the  law.  Carroll  v.  Greenwich  Ins. 
Co.,  199  U.  S.  401,  411.  We  must  assume  that  the  legislature 
of  South  Dakota  considered  that  people  selling  in  two  places 
made  the  prohibited  use  of  their  opportunities  and  that  such  use 
was  harmful,  although  the  usual  efforts  of  competitors  were 
desired.  It  might  have  been  argued  to  the  legislature  with  more 
force  than  it  can  be  to  us  that  recoupment  in  one  place  of  losses 
in  another  is  merely  an  instance  of  financial  ability  to  compete. 
If  the  legislature  thought  that  that  particular  manifestation  of 
ability  usually  came  from  great  corporations  whose  power  it 
deemed  excessive  and  for  that  reason  did  more  harm  than  good 
in  their  State,  and  that  there  was  no  other  cause  of  frequent 
occurrence  where  the  same  could  be  said,  we  cannot  review  their 
economics  or  their  facts.  That  the  law  embodies  a  widespread 
conviction  appears  from  the  decisions  in  other  States.  State  v. 
Drayton,  82  Neb.  254 ;  State  v.  Standard  Oil  Co.,  Ill  Minn.  85 ; 
.  .  .  State  v.  Fairmont  Creamery,  153  Iowa,  702;  .  .  . 
State  v.  Bridgeman  &  Russell  Co.,  117  Minn.  186.  .  .  . 

What  we  have  said  makes  it  unnecessary  to  add  much  on  the 
second  point,  if  open,  that  the  law  is  made  in  favor  of  regular 
established  dealers — but  the -short  answer  is  simply  to  read  the 
law.  It  extends  on  its  face  also  to  those  who  intend  to  become 
such  dealers.  If  it  saw  fit  not  to  grant  the  same  degree  of  protec- 
tion to  parties  making  a  transitory  incursion  into  the  business, 
we  see  no  objection.  But  the  Supreme  Court  says  that  the 
statute  is  aimed  at  preventing  the  creation  of  a  monopoly  by 
means  likely  to  be  employed,  and  certainly  we  should  read  the 
law  as  having  in  view  ultimately  the  benefit  of  buyers  of  the 
goods. 

Finally,  as  to  the  statute's  depriving  the  plaintiff  in  error  of 
its  liberty  because  it  forbids  a  certain  class  of  dealings,  we  think 
it  enough  to  say  that  as  the  law  does  not  otherwise  encounter 
the  Fourteenth  Amendment,  it  is  not  to  be  disturbed  on  this 
ground.  The  matter  has  been  discussed  so  often  in  this  court 


PATSONE  v.   1'KNNSYLVAMA.  367 

that  we  simply  refer  to  Chicago,  Burlington  &  Quincy  R.  R.  Co. 
v.  McGuire,  219  U.  S.  549,  567,  568,  and  the  cases  there  cited  to 
illustrate  how  much  power  is  left  in  the  States.  See  also  Grenada 
Lumber  Co.  v.  Mississippi,  217  U.  S.  433,  442;  Lemieux  v.  Young, 
211  U.  S.  489,  496;  Otis  v.  Parker,  187  U.  S.  606,  609. 

Judgment  affirmed. 


PATSONE  v.  COMMONWEALTH  OF  PENNSYLVANIA 

SUPREME  COUBT  or  THE  UNITED  STATES.    1914. 
23-2  U.  8.  138;  58  Lawyers'  Ed.  539. 

Error  to  the  Supreme  Court  of  the  Commonwealth  of  Penn- 
sylvania. 

MB.  JUSTICE  HOLMES  delivered  the  opinion  of  the  court. 

The  plaintiff  in  error  was  an  unnaturalized  foreign  born  resi- 
dent of  Pennsylvania  and  was  complained  of  for  owning  or  hav- 
ing in  his  possession  a  shotgun,  contrary  to  an  act  of  May  8, 
1909.  Laws,  1909,  No.  261,  p.  466.  This  statute  makes  it  unlaw- 
ful for  any  unnaturalized  foreign  born  resident  to  kill  any  wild 
bird  or  animal  except  in  defense  of  person  or  property,  and  ' '  to 
that  end"  makes  it  unlawful  for  such  foreign  born  person  to 
own  or  be  possessed  of  a  shotgun  or  rifle;  with  a  penalty  of 
twenty-five  dollars  and  a  forfeiture  of  the  gun  or  guns.  The 
plaintiff  in  error  was  found  guilty  and  was  sentenced  to  pay 
the  above  mentioned  fine.  The  judgment  was  affirmed  on  suc- 
cessive appeals.  231  Pa.  St.  46.  He  brings  the  case  to  this  court 
on  the  ground  that  the  statute  is  contrary  to  the  Fourteenth 
Amendment  and  also  is  in  contravention  of  the  treaty  between 
the  United  States  and  Italy,  to  which  latter  country  the  plain- 
tiff in  error  belongs. 

Under  the  Fourteenth  Amendment  the  objection  is  two-fold ; 
unjustifiably  depriving  the  alien  of  property,  and  discrimination 
against  such  aliens  as  a  class.  But  the  former  really  depends 
upon  the  latter,  since  it  hardly  can  be  disputed  that  if  the  law- 
ful object,  the  protection  of  wild  life  (Geer  v.  Connecticut,  161 
U.  S.  519),  warrants  the  discrimination,  the  means  adopted  for 
making  it  effective  also  might  be  adopted.  The  possession  of 
and  shotguns  is  not  necessary  for  other  purposes  not  with- 
in the  statute.  It  is  so  peculiarly  appropriated  to  the  forbid- 
den use  that  if  such  a  use  may  be  denied  to  this  class,  the  pos- 


368  CASES  ON  CONSTITUTIONAL  LAW. 

session  of  the  instruments  desired  chiefly  for  that  end  also  may 
be.  The  prohibition  does  not  extend  to  weapons  such  as  pistols 
that  may  be  supposed  to  be  needed  occasionally  for  self-defense. 
So  far,  the  case  is  within  the  principle  of  Lawton  v.  Steele,  152 
U.  S.  133.  See,  further,  Silz  v.  Hesterberg,  211  U.  S.  31 ;  Purity 
Extract  Co.  v.  Lynch,  226  U.  S.  192. 

The  discrimination  undoubtedly  presents  a  more  difficult  ques- 
tion. But  we  start  with  the  general  consideration  that  a  State 
may  classify  with  reference  to  the  evil  to  be  prevented,  and  that 
if  the  class  discriminated  against  is  or  reasonably  might  be  con- 
sidered to  define  those  from  whom  the  evil  is  mainly  to  be  feared, 
it  properly  may  be  picked  out.  A  lack  of  abstract  symmetry  does 
not  matter.  The  question  is  a  practical  one  dependent  upon 
experience.  The  demand  for  symmetry  ignores  the  specific  dif- 
ference that  experience  is  supposed  to  have  shown  to  mark  the 
class.  It  is  not  enough  to  invalidate  the  law  that  others  may  do 
the  same  thing  and  go  unpunished,  if,  as  a  matter  of  fact,  it  is 
found  that  the  danger  is  characteristic  of  the  class  named.  Linds- 
ley  v.  Natural  Carbonic  Gas  Co.,  220  U.  S.  61,  80,  81.  The  State 
"may  direct  its  law  against  what  it  deems  the  evil  as  it  actually 
exists  without  covering  the  whole  field  of  possible  abuses."  Cen- 
tral Lumber  Co.  v.  South  Dakota,  226  U.  S.  157, 160 ;  Eosenthal  v. 
New  York,  226  U.  S.  260,  270;  L'Hote  v.  New  Orleans,  177  U.  S. 
587.  See  further  Louisville  &  Nashville  R.  R.  Co.  v.  Melton, 
218  U.  S.  36.  The  question  therefore  narrows  itself  to  whether 
this  court  can  say  that  the  Legislature  of  Pennsylvania  was  not 
warranted  in  assuming  as  its  premise  for  the  law  that  resident 
unnaturalized  aliens  were  the  peculiar  source  of  the  evil  that 
it  desired  to  prevent.  Barrett  v.  Indiana,  229  U.  S.  26,  29. 

Obviously  the  question  so  stated  is  one  of  local  experience  on 
which  this  court  ought  to  be  very  slow  to  declare  that  the  state 
legislature  was  wrong  in  its  facts.  Adams  v.  Milwaukee,  228 
U.  S.  572,  583.  If  we  might  trust  popular  speech  in  some  States 
it  was  right — but  it  is  enough  that  this  court  has  no  such  knowl- 
edge of  local  conditions  as  to  be  able  to  say  that  it  was  mani- 
festly wrong.  See  Trageser  v.  Gray,  73  Maryland,  250;  Com- 
monwealth v.  Hana,  195  Massachusetts,  262.  .  .  . 

Judgment  affirmed. 

The  CHIEF  JUSTICE  dissents. 

NOTE. — As  to  the  relation  of  legislation  for  classes  to  the  equal  protec- 
tion of  the  laws,  see  Adams  v.  Milwaukee  (1913),  228  U.  S.  572  (inspection 
of  milk  cows  within  and  without  a  city  governed  by  different  rules) ;  Sturges 
&  Burn  Mfg.  Co.  v.  Beauchamp  (1913),  231  U.  S.  320  (statute  applicable 


I'ATSONE  v.  PENNSYLVANIA.  369 

only  to  laborers  under  16  years  of  age)  ;  Baltic  Mining  Co.  v.  Massachusetts 
(1913),  231  U.  8.  68  (discriminatory  tax  on  foreign  corporations);  Baccus 
T.  Louisiana  (1914),  232  U.  8.  334  (prohibition  of  sale  of  drugs  by  ped- 
dlers) ;  Ohio  Tax  Cases  (1914),  232  U.  8.  576  (imposition  of  an  excise  tax 
on  railway  earnings  only);  Eberle  v.  Michigan  (1914),  232  U.  8.  700  (per- 
mitting sale  of  liquor  only  by  druggists) ;  Missouri,  K.  &  T.  By.  v.  Cade 
(1914),  233  U.  8.  642  (statute  for  facilitating  settlement  of  small  claims) ; 
Kansas  City  Southern  By.  T.  Anderson  (1914),  233  U.  8.  325  (imposition 
of  double  damages  on  railways  and  not  on  other  defendants) ;  Smith  v. 
Texas  (1914),  233  U.  8.  630  (requiring  a  conductor  to  have  had  two  years' 
experience  as  a  brakeman);  Keokee  Coke  Co.  v.  Taylor  (1914),  234  U.  8. 
224  (requiring  a  certain  method  of  paying  laborers  in  some  industries  and 
not  in  others);  Easterling  Lumber  Co.  v.  Pierce  (1914),  235  U.  8.  380 
(classification  of  employees  based  on  use  of  engines  in  a  statute  abolishing 
the  fellow-servant  rule);  Jeffrey  Manufacturing  Co.  v.  Blagg  (1915),  235 
U.  8.  571  (similar  statute  where  classification  is  based  on  number  of  em- 
ployees);  Miller  v.  Wilson  (1915),  236  U.  8.  373  (restrictions  on  women's 
hours  of  labor);  Bosley  v.  McLaughlin  (1915),  236  U.  8.  385  (provisions 
as  to  graduate  nurses  not  applied  to  other  nurses). 


E.C.L.-M 


CHAPTER  X. 

THE  POLICE  POWER. 

What  are  the  police  powers  of  a  State?  They  are  nothing 
more  or  less  than  the  powers  of  government  inherent  in  every 
sovereignty  to  the  extent  of  its  dominions.  And  whether  a  State 
passes  a  quarantine  law  or  a  law  to  punish  offenses,  or  to  establish 
courts  of  justice,  or  requiring  certain  instruments  to  be  recorded, 
or  to  regulate  commerce  within  its  own  limits,  in  every  case  it 
exercises  the  same  power;  that  is  to  say,  the  power  of  sovereignty, 
the  power  to  govern  men  and  things  within  the  limits  of  its 
dominion. 

Chief  Justice  Taney  in  The  License  Cases,  5  Howard,  504,  584. 

Discussions  of  what  is  called  the  "police  power"  are  often 
uninstructive,  from  a  lack  of  discrimination.  It  is  common  to 
I  recognize  that  the  subject  is  hardly  susceptible  of  definition,  but 
very  often,  indeed,  it  is  not  perceived  that  the  real  question  in 
hand  is  that  grave,  difficult,  and  fundamental  matter, — what  are 
the  limits  of  legislative  power  in  general?  In  talking  of  the 
"police  power,"  sometimes  the  question  relates  to  the  limits  of 
a  power  admitted  and  fairly  well-known,  as  that  of  taxation  or 
eminent  domain ;  sometimes  to  the  line  between  the  local  legislative 
power  of  the  States  and  the  Federal  legislative  power;  sometimes 
to  legislation  as  settling  the  details  of  municipal  affairs,  and  local 
arrangements  for  the  promotion  of  good  order,  health,  comfort, 
and  convenience;  sometimes  to  that  special  form  of  legislative 
action  which  applies  the  maxim  of  Sic  utere  tuo  ut  alienum  non 
Icedas,  adjusts  and  accommodates  interests  that  may  conflict,  and 
fixes  specific  limits  for  each.  But  often,  the  discussion  turns  upon 
the  true  limits  and  scope  of  legislative  power  in  general, — in 
whatever  way  it  may  seek  to  promote  the  general  welfare. 

James  B.   Thayer,  Cases  on  Constitutional  Law,  I,  693. 

SECTION  1.    THE  PROTECTION  OF  HEALTH. 

RAILROAD  COMPANY  v.  HUSEN. 

SUPREME  COURT  OF  THE  UNITED  STATES.    1877. 
95  U.  S.  465;  24  Lawyers'  Ed.  527. 

Error  to  the  Supreme  Court  of  the  State  of  Missouri.     .     .     . 

MR.  JUSTICE  STRONG  delivered  the  opinion  of  the  court. 
Five  assignments  of  error  appear  in  this  record ;  but  they  raise 
only  a  single  question.    It  is,  whether  the  statute  of  Missouri, 

370 


RAILROAD  COMPANY  v.  HUSEX.  371 

upon  which  the  action  in  the  State  court  was  founded,  is  in 
conflict  with  the  clause  of  the  Constitution  of  the  United  States 
that  ordains  "Congress  shall  have  power  to  regulate  commerce 
with  foreign  nations,  and  among  the  several  States,  and  with  the 
Indian  tribes."  The  statute,  approved  January  23,  1872,  by  its 
first  section,  enacted  as  follows :  ' '  No  Texas,  Mexican,  or  Indian 
cattle  shall  be  driven  or  otherwise  conveyed  into,  or  remain,  in 
any  county  in  this  State,  between  the  first  day  of  March  and  the 
first  day  of  November  in  each  year,  by  any  person  or  persons 
whatsoever."  A  later  section  is  in  these  words:  "If  any  person 
or  persons  shall  bring  into  this  State  any  Texas,  Mexican,  or  In- 
dian cattle,  in  violation  of  the  first  section  of  this  act,  he  or  they 
shall  be  liable,  in  all  cases,  for  all  damages  sustained  on  account 
of  disease  communicated  by  said  cattle."  Other  sections  make 
such  bringing  of  cattle  into  the  State  a  criminal  offense,  and  pro- 
vide penalties  for  it.  It  was,  however,  upon  the  provisions  we 
have  quoted  that  this  action  was  brought  against  the  railroad 
company  that  had  conveyed  the  cattle  into  the  county.  It  is 
noticeable  that  the  statute  interposes  a  direct  prohibition  against 
the  introduction  into  the  State  of  all  Texas,  Mexican,  or  Indian 
cattle  during  eight  months  of  each  year,  without  any  distinction 
between  such  as  may  be  diseased  and  such  as  are  not.  It  is  true 
a  proviso  to  the  first  section  enacts  that  "when  such  cattle  shall 
come  across  the  line  of  the  State,  loaded  upon  a  railroad  car  or 
steamboat,  and  shall  pass  through  the  State  without  being  un- 
loaded, such  shall  not  be  construed  as  prohibited  by  the  act; 
but  the  railroad  company  or  owners  of  a  steamboat  performing 
such  transportation  shall  be  responsible  for  damages  which  may 
result  from  the  disease  called  the  Spanish  or  Texas  fever,  should 
the  same  occur  along  the  line  of  transportation;  and  the  exist- 
ence of  such  disease  along  the  line  of  such  route  shall  be  prima 
facie  evidence  that  such  disease  has  been  communicated  by  such 
transportation."  This  proviso  imposes  burdens  and  liabilities 
for  transportation  through  the  State,  though  the  cattle  be  not 
unloaded,  while  the  body  of  the  section  absolutely  prohibits  the 
introduction  of  any  such  cattle  into  the  State,  with  the  single 
exception  mentioned. 

It  seems  hardly  necessary  to  argue  at  length,  that,  unless  the 
statute  can  be  justified  as  a  legitimate  exercise  of  the  police  power 
of  the  State,  it  is  a  usurpation  of  the  power  vested  exclusively 
in  Congress.  It  is  a  plain  regulation  of  interstate  commerce, 
a  regulation  extending  to  prohibition.  Whatever  may  be  the 
power  of  a  State  over  commerce  that  is  completely  internal,  it 


372  CASES  ON  CONSTITUTIONAL  LAW. 

can  no  more  prohibit  or  regulate  that  which  is  interstate  than  it 
can  that  which  is  with  foreign  nations.  Power  over  one  is  given 
by  the  Constitution  of  the  United  States  to  Congress  in  the  same 
words  in  which  it  is  given  over  the  other,  and  in  both  cases  it 
is  necessarily  exclusive.  That  the  transportation  of  property 
from  one  State  to  another  is  a  branch  of  interstate  commerce  is 
undeniable,  and  no  attempt  has  been  made  in  this  case  to  deny  it. 

The  Missouri  statute  is  a  plain  interference  with  such  trans- 
portation, an  attempted  exercise  over  it  of  the  highest  possible 
power, — that  of  destruction.  .  .  . 

We  are  thus  brought  to  the  question  whether  the  Missouri 
statute  is  a  lawful  exercise  of  the  police  power  of  the  State.  We 
admit  that  the  deposit  in  Congress  of  the  power  to  regulate  for- 
eign commerce  and  commerce  among  the  States  was  not  a  sur- 
render of  that  which  may  properly  be  denominated  police  power. 
What  that  power  is,  it  is  difficult  to  define  with  sharp  precision. 
It  is  generally  said  to  extend  to  making  regulations  promotive 
of  domestic  order,  morals,  health,  and  safety.  .  .  . 

But  whatever  may  be  the  nature  and  reach  of  the  police  power 
of  a  State,  it  cannot  be  exercised  over  a  subject  confided  exclu- 
sively to  Congress  by  the  Federal  Constitution.  It  cannot  invade 
the  domain  of  the  national  government.  It  was  said  in  Hender- 
son et  al.  v.  Mayor  of  the  City  of  New  York  et  al.,  92  U.  S.  259, 
to  "  be  clear,  from  the  nature  of  our  complex  form  of  government, 
that  whenever  the  statute  of  a  State  invades  the  domain  of  leg- 
islation which  belongs  exclusively  to  the  Congress  of  the  United 
States,  it  is  void,  no  matter  under  what  class  of  pjwers  it  may 
fall,  or  how  closely  allied  it  may  be  to  powers  conceded  to  be- 
long to  the  States."  Substantially  the  same  thing  was  said  by 
Chief  Justice  Marshall  in  Gibbons  v.  Ogden,  9  Wheat.  1.  Neither 
the  unlimited  powers  of  a  State  to  tax,  nor  any  of  its  large  police 
powers,  can  be  exercised  to  such  an  extent  as  to  work  a  practical 
assumption  of  the  powers  properly  conferred  upon  Congress  by 
the  Constitution.  Many  acts  of  a  State  may,  indeed,  affect  com- 
merce, without  amounting  to  a  regulation  of  it,  in  the  constitu- 
tional sense  of  the  term.  And  it  is  sometimes  difficult  to  define 
the  distinction  between  that  which  merely  affects  or  influences 
and  that  which  regulates  or  furnishes  a  rule  of  conduct.  There 
is  no  such  difficulty  in  the  present  case.  While  we  unhesitatingly 
admit  that  a  State  may  pass  sanitary  laws,  and  laws  for  the  pro- 
tection of  life,  liberty,  health,  or  property  within  its  borders; 
while  it  may  prevent  persons  and  animals  suffering  under  con- 
tagious or  infectious  diseases,  or  convicts,  &c.,  from  entering  the 


RAILROAD  COMPANY  v.  HUSEN  373 

State;  while  for  the  purpose  of  self-protection  it  may  establish 
quarantine,  and  reasonable  inspection  laws,  it  may  not  inter- 
wit  li  transportation  into  or  through  the  State,  beyond  what 
is  absolutely  necessary  for  its  self-protection.  It  may  not,  under 
cover  of  exerting  its  police  powers,  substantially  prohibit  or 
burden  either  foreign  or  interstate  commerce.  .  .  . 

Tried  by  this  rule,  the  statute  of  Missouri  is  a  plain  intrusion 
upon  the  exclusive  domain  of  Congress.  It  is  not  a  quarantine 
law.  It  is  not  an  inspection  law.  It  says  to  all  natural  persons 
and  to  all  transportation  companies,  "You  shall  not  bring  into 
the  State  any  Texas  cattle  or  any  Mexican  cattle  or  Indian  cat- 
tle, between  March  1  and  Dec.  1  in  any  year,  no  matter  whether 
they  are  free  from  disease  or  not,  no  matter  whether  they  may  do 
an  injury  to  the  inhabitants  of  the  State  or  not ;  and  if  you  do 
bring  them  in,  even  for  the  purpose  of  carrying  them  through 
the  State  without  unloading  them,  you  shall  be  subject  to  extraor- 
dinary liabilities."  Such  a  statute,  we  do  not  doubt,  it  is 
beyond  the  power  of  the  State  to  enact.  To  hold  otherwise  would 
be  to  ignore  one  of  the  leading  objects  which  the  Constitution  of 
the  United  States  was  designed  to  secure.  .  .  . 

Judgment  reversed.    .    .    . 

NOTE. — For  general  ^discussions  of  the  nature  of  the  police  power,  Bee 
Tiedeman,  The  Police  Power;  Freund,  The  Police  Power,  chapters  i,  ii, 
and  iii;  Cooley,  Conttitutiamal  Limitation*,  ch.  xvi;  McGehee,  Due  Procet* 
of  Law,  ch.  «;  Commonwealth  v.  Alger  (1851),  7  Gushing  (Mass.),  53; 
Thorpe  v.  Rutland  &  Burlington  Ry.  (1855),  27  Vt.  140;  Lawton  v.  Steele 
(1894),  152  U.  8.  133.  As  to  the  power  of  the  States  to  enter  into  contracts 
limiting  its  exercise  of  the  police  power,  see  Beer  Company  v.  Massachusetts 
(1877),  97  U.  8.  25;  but  compare  Stone  v.  Fanners'  Loan  &  Trust  Co. 
(1886),  116  U.  8.  307  and  Georgia  Railroad  and  Banking  Co.  v.  Smith 
(1888),  128  U.  8.  174. 

As  to  State  regulations  for  the  protection  of  the  public  health,  see  Kim- 
mish  v.  Ball  (1889),  129  U.  8.  217,  Rasmussen  v.  Idaho  (1901),  181  U.  S. 
198,  and  Reid  v.  Colorado  (1902),  187  U.  8.  137  (acts  for  preventing  im- 
portation of  infected  live  stock);  Austin  v.  Tennessee  (1900),  179  U.  8. 
343,  and  Cook  v.  Marshall  County  (1905),  196  U.  S.  261  (sale  of  cigarettes)  ; 
Powell  v.  Pennsylvania  (1888),  127  U.  8.  678,  Schollenberger  v.  Pennsyl- 
vania (1898),  171  U.  8.  1,  and  Collins  v.  New  Hampshire  (1898),  171  I'.  8. 
30  (sale  of  oleomargarine);  New  York  v.  Van  De  Carr  (1905),  199  U.  8. 
sale  of  milk);  Fertilizing  Co.  v.  Hyde  Park  (1879),  97  U.  8.  659 
(maintenance  of  a  nuisance);  California  Reduction  Co.  v.  Sanitary  Reduc- 
tion Works  (1905),  199  U.  8.  306  (disposal  of  garbage). 


374  CASES  ON  CONSTITUTIONAL  LAW. 

HOLDEN  v.  HARDY. 

SUPREME  COURT  OF  THE  UNITED  STATES.    1898. 
169  U.  S.  366;  42  Lawyers'  Ed.  780. 

Error  to  the  Supreme  Court  of  the  State  of  Utah. 

[The  legislature  of  Utah  enacted  a  law  providing  that  work- 
men should  not  be  employed  in  underground  mines  or  smelters 
or  other  institutions  for  the  reduction  of  ores  or  metals  for  more 
than  eight  hours  per  day  except  in  certain  cases  of  emergency. 
Violation  of  the  statute  was  made  a  misdemeanor.  The  plaintiff 
in  error  having  been  convicted  thereunder  set  up  that  the  statute 
was  contrary  to  the  Fourteenth  Amendment.] 

MR.  JUSTICE  BROWN  .  .  .  delivered  the  opinion  of  the 
court.  . 

The  validity  of  the  statute  in  question  is  .  .  .  challenged 
upon  the  ground  of  an  alleged  violation  of  the  Fourteenth 
Amendment  to  the  Constitution  of  the  United  States,  in  that  it 
abridges  the  privileges  or  immunities  of  citizens  of  the  United 
States;  deprives  both  the  employer  and  the  laborer  of  his  prop- 
erty without  due  process  of  law,  and  denies  to  them  the  equal 
protection  of  the  laws.  .  .  .  [Here  follows  an  elaborate  ex- 
amination and  classification  of  the  decisions  of  the  Supreme 
Court  in  interpreting  the  Fourteenth  Amendment.]  . 

The  latest  utterance  of  this  court  upon  this  subject  is  con- 
tained in  the  case  of  Allgeyer  v.  Louisiana,  165  U.  S.  578,  591, 
in  which  it  was  held  that  an  act  of  Louisiana  which  prohibited 
individuals  within  the  State  from  making  contracts  of  insurance 
with  corporations  doing  business  in  New  York,  was  a  violation 
of  the  Fourteenth  Amendment.  In  delivering  the  opinion  of  the 
court,  Mr.  Justice  Peckham  remarked:  "In  the  privilege  of 
pursuing  an  ordinary  calling  or  trade,  and  of  acquiring,  holding, 
and  selling  property,  must  be  embraced  the  right  to  make  all 
proper  contracts  in  relation  thereto,  and,  although  it  may  be 
conceded  that  this  right  to  contract  in  relation  to  persons  or 
property  or  to  do  business  within  the  jurisdiction  of  the  State, 
may  be  regulated  and  sometimes  prohibited,  when  the  contracts 
or  business  conflict  with  the  policy  of  the  State  as  contained  in 
its  statutes,  yet  the  power  does  not  and  cannot  extend  to  pro- 
hibiting a  citizen  from  making  contracts  of  the  nature  involved 
in  this  case  outside  of  the  limits  and  jurisdiction  of  the  State, 
and  which  are  also  to  be  performed  outside  of  such  jurisdiction." 


I10LDEN  v    HAKDY.  375 

This  right  of  contract,  however,  is  itself  subject  to  certain 
limitations  which  the  State  may  lawfully  impose  in  the  exercise 
of  its  police  powers.  While  this  power  is  inherent  in  all  govern- 
ments, it  has  doubtless  been  greatly  expanded  in  its  application 
during  the  past  century,  owing  to  an  enormous  increase  in  the 
number  of  occupations  which  are  dangerous,  or  so  far  detri- 
mental to  the  health  of  employes  as  to  demand  special  precau- 
tions for  their  well-being  and  protection,  or  the  safety  of  adjacent 
property.  . 

While  this  power  is  necessarily  inherent  in  every  form  of  gov- 
ernment, it  was,  prior  to  the  adoption  of  the  Constitution,  but 
sparingly  used  in  this  country.  As  we  were  then  almost  purely 
an  agricultural  people,  the  occasion  for  any  special  protection 
of  a  particular  class  did  not  exist.  Certain  profitable  employ- 
ments, such  as  lotteries  and  the  sale  of  intoxicating  liquors,  which 
were  then  considered  to  be  legitimate,  have  since  fallen  under 
the  ban  of  public  opinion,  and  are  now  either  altogether  pro- 
hibited or  made  subject  to  stringent  police  regulations.  . 

While  the  business  of  mining  coal  and  manufacturing  iron 
began  in  Pennsylvania  as  early  as  1716,  and  in  Virginia,  North 
Carolina  and  Massachusetts  even  earlier  than  this,  both  mining 
and  manufacturing  were  carried  on  in  such  a  limited  way  and 
by  such  primitive  methods  that  no  special  laws  were  considered 
necessary,  prior  to  the  adoption  of  the  Constitution,  for  the  pro- 
tection of  the  operatives ;  but,  in  the  vast  proportions  which  these 
industries  have  since  assumed,  it  has  been  found  that  they  can 
no  longer  be  carried  on  with  due  regard  to  the  safety  and  health 
of  those  engaged  in  them,  without  special  protection  against  the 
dangers  necessarily  incident  to  these  employments.  In  conse- 
quence of  this,  laws  have  been  enacted  in  most  of  the  States 
designed  to  meet  these  exigencies  and  to  secure  the  safety  of 
persons  peculiarly  exposed  to  these  dangers.  Within  this  gen- 
eral category  are  ordinances  providing  for  fire  escapes  for  hotels, 
theaters,  factories  and  other  large  buildings,  a  municipal  inspec- 
tion of  boilers,  and  appliances  designed  to  secure  passengers 
upon  railways  and  steamboats  against  the  dangers  necessarily 
incident  to  these  methods  of  transportation.  In  States  where 
manufacturing  is  carried  on  to  a  largo  rxtrnt,  provision  is  made 
for  the  protection  of  dangerous  machinery  against  accidental 
contact,  for  the  cleanliness  and  \vntilat  ion  of  working  rooms, 
for  the  guarding  of  well  holes,  stairways,  elevator  shafts  and  for 
tlu-  employment  of  sanitary  appliances.  In  others,  where  mining 
is  the  principal  industry,  special  provision  is  made  for  the  shor- 


376  CASES  ON  CONSTITUTIONAL  LAW. 

ing  up  of  dangerous  walls,  for  ventilation  shafts,  bore  holes, 
escapement  shafts,  means  of  signalling  the  surface,  for  the  supply 
of  fresh  air  and  the  elimination,  as  far  as  possible,  of  dangerous 
gases,  for  safe  means  of  hoisting  and  lowering  cages,  for  a  limi- 
tation upon  the  number  of  persons  permitted  to  enter  a  cage, 
that  cages  shall  be  covered,  and  that  there  shall  be  fences  and 
gates  around  the  top  of  shafts,  besides  other  similar  precau-  • 
tions.  . 

But  if  it  be  within  the  power  of  a  legislature  to  adopt  such 
means  for  the  protection  of  the  lives  of  its  citizens,  it  is  difficult 
to  see  why  precautions  may  not  also  be  adopted  for  the  protec- 
tion of  their  health  and  morals.  It  is  as  much  for  the  interest 
of  the  State  that  the  public  health  should  be  preserved  as  that 
life  should  be  made  secure.  With  this  end  in  view  quarantine 
laws  have  been  enacted  in  most  if  not  all  of  the  States;  insane 
asylums,  public  hospitals,  and  institutions  for  the  care  and  edu- 
cation of  the  blind  established,  and  special  measures  taken  for 
the  exclusion  of  infected  cattle,  rags,  and  decayed  fruit.  In 
other  States  laws  have  been  enacted  limiting  the  hours  during 
which  women  and  children  shall  be  employed  in  factories;  and 
while  their  constitutionality,  at  least  as  applied  to  women,  has 
been  doubted  in  some  of  the  States,  they  have  been  generally 
upheld.  Thus,  in  the  case  of  Commonwealth  v.  Hamilton  Manu- 
facturing Co.,  120  Mass.  383,  it  was  held  that  a  statute  pro- 
hibiting the  employment  of  all  persons  under  the  age  of  eighteen, 
and  of  all  women  laboring  in  any  manufacturing  establishment 
more  than  sixty  hours  per  week,  violates  no  contract  of  the  Com- 
monwealth implied  in  the  granting  of  a  charter  to  a  manufac- 
turing company  nor  any  right  reserved  under  the  Constitution 
to  any  individual  citizen,  and  may  be  maintained  as  a  health  or 
police  regulation. 

Upon  the  principles  above  stated,  we  think  the  act  in  question 
may  be  sustained  as  a  valid  exercise  of  the  police  power  of  the 
State.  The  enactment  does  not  profess  to  limit  the  hours  of  all 
workmen,  but  merely  those  who  are  employed  in  underground 
mines,  or  in  the  smelting,  reduction,  or  refining  of  ores  or  metals. 
These  employments,  when  too  long  pursued,  the  legislature  has 
judged  to  be  detrimental  to  the  health  of  the  employes,  and, 
so  long  as  there  are  reasonable  grounds  for  believing  that  this  is 
so,  its  decision  upon  this  subject  cannot  be  reviewed  by  the  Fed- 
eral courts. 

While  the  general  experience  of  mankind  may  justify  us  in 
believing  that  men  may  engage  in  ordinary  employments  more 


MUGLER  v.  KANSAS.  377 

than  eight  hours  per  day  without  injury  to  their  health,  it  does 
not  follow  that  labor  for  the  same  length  of  time  is  innocuous 
when  carried  on  beneath  the  surface  of  the  earth,  where  the 
operative  is  deprived  of  fresh  air  and  sunlight,  and  is  frequently 
subjected  to  foul  atmosphere  and  a  very  high  temperature,  or 
to  the  influence  of  noxious  gases,  generated  by  the  processes  of 
refining  or  smelting.  . 

We  are  of  opinion  that  the  act  in  question  was  a  valid  exercise 
of  the  police  power  of  the  State,  and  the  judgments  of  the 
Supreme  Court  of  Utah  are,  therefore,  Affirmed. 

MB.  JUSTICE  BREWER  and  MR.  JUSTICE  PECKHAM  dissented. 


SEC.  2.    THE  PROTECTION  OP  MORALS. 
MUGLER  v.  KANSAS. 

SUPREME  COUBT  OP  THE  UNITED  STATES.    1887. 
123  U.  S.  623;  31  Lawyers'  Ed.  205. 

Error  to  the  Supreme  Court  of  the  State  of  Kansas. 

The  constitution  of  the  State  of  Kansas  contains  the  follow- 
ing article,  being  art.  15  of  §  10,  which  was  adopted  by  the 
people  November  2,  1880: 

"The  manufacture  and  sale  of  intoxicating  liquors  shall  be 
forever  prohibited  in  this  State,  except  for  medical,  scientific, 
and  mechanical  purposes." 

The  legislature  of  Kansas  enacted  a  statute  to  carry  this  into 
effect.  . 

Tin-  plaintiff  in  error,  Mugler,  the  proprietor  of  a  brewery  in 
Saline  County,  Kansas,  was  indicted  in  the  District  Court  in  that 
county  in  November,  1881,  for  offenses  against  this  statute. 

Mugler  was  adjudged  to  be  guilty,  and  was  sentenced  to  pay 
a  fine  of  one  hundred  dollars  and  costs,  and  motions  for  a  new 
trial  and  in  arrest  of  judgment  were  overruled.  This  judgment 
being  affirmed  by  the  Supreme  Court  of  the  State  on  appeal,  the 
cause  was  brought  here  by  writ  of  error  on  his  motion.1  .  .  . 

i  The  case  of  Kansas  v.  Zeibold,  which  was  appealed  from  the  Circuit 
Court  of  the  United  States  for  the  District  of  Kansas,  was  heard  at  the 
same  time. 


378  CASES  ON  CONSTITUTIONAL  LAW. 

MR.  JUSTICE  HARLAN  delivered  the  opinion  of  the  court. 

These  cases  involve  an  inquiry  into  the  validity  of  certain 
statutes  of  Kansas  relating  to  the  manufacture  and  sale  of  intox- 
icating liquors.  . 

The  general  question  in  each  case  is,  whether  the  foregoing 
statutes  of  Kansas  are  in  conflict  with  that  clause  of  the  Four- 
teenth Amendment,  which  provides  that  ' '  no  State  shall  make  or 
enforce  any  law  which  shall  abridge  the  privileges  or  immunities 
of  citizens  of  the  United  States ;  nor  shall  any  State  deprive  any 
person  of  life,  liberty,  or  property,  without  due  process  of 
law."  .  .  . 

In  Foster  v.  Kansas,  112  U.  S.  201,  206,  the  court  said  that 
the  question  as  to  the  constitutional  power  of  a  State  to  prohibit 
the  manufacture  and  sale  of  intoxicating  liquors  was  no  longer 
an  open  one  in  this  court.  . 

It  is,  however,  contended  that,  although  the  State  may  pro- 
hibit the  manufacture  of  intoxicating  liquors  for  sale  or  barter 
within  her  limits,  for  general  use  as  a  beverage,  "no  convention 
or  legislature  has  the  right,  under  our  form  of  government,  to 
prohibit  any  citizen  from  manufacturing  for  his  own  use,  or  for 
export,  or  storage,  any  article  of  food  or  drink  not  endangering 
or  affecting  the  rights  of  others."  The  argument  made  in  sup- 
port of  the  first  branch  of  this  proposition,  briefly  stated,  is,  that 
in  the  implied  compact  between  the  State  and  the  citizen  certain 
rights  are  reserved  by  the  latter,  which  are  guaranteed  by  the 
constitutional  provision  protecting  persons  against  being  de- 
prived of  life,  liberty,  or  property,  without  due  process  of  law, 
and  with  which  the  State  cannot  interfere;  that  among  those 
rights  is  that  of  manufacturing  for  one's  use  either  food  or 
drink;  and  that  while,  according  to  the  doctrines  of  the  Com- 
mune, the  State  may  control  the  tastes,  appetites,  habits,  dress, 
food,  and  drink  of  the  people,  our  system  of  government,  based 
upon  the  individuality  and  intelligence  of  the  citizen,  does  not 
claim  to  control  him,  except  as  to  his  conduct  to  others,  leaving 
him  the  sole  judge  as  to  all  that  only  affects  himself. 

It  will  be  observed  that  the  proposition,  and  the  argument 
made  in  support  of  it,  equally  concede  that  the  right  to  manu- 
facture drink  for  one's  personal  use  is  subject  to  the  condition 
that  such  manufacture  does  not  endanger  or  affect  the  rights  of 
others.  If  such  manufacture  does  prejudicially  affect  the  rights 
and  interests  of  the  community,  it  follows,  from  the  very  prem- 
ises stated,  that  society  has  the  power  to  protect  itself,  by  legis- 
lation, against  the  injurious  consequences  of  that  business.  As 


MUGLER  v.  KANSAS.  379 

was  said  in  Munn  v.  Illinois,  94  U.  S.  113, 124,  while  power  does 
not  exist  with  the  whole  people  to  control  rights  that  are  purely 
and  exclusively  private,  government  may  require  "each  citizen 
to  so  conduct .  himself,  and  so  use  his  own  property,  as  not  un- 
necessarily to  injure  another." 

But  by  whom,  or  by  what  authority,  is  it  to  be  determined 
whether  the  manufacture  of  particular  articles  of  drink,  eitln-r 
for  general  use  or  for  the  personal  use  of  the  maker,  will  inju- 
riously affect  the  public?  Power  to  determine  such  questions, 
so  as  to  bind  all,  must  exist  somewhere;  else  society  will  be  at 
the  mercy  of  the  few,  who,  regarding  only  their  own  appetites 
or  passions,  may  be  willing  to  imperil  the  peace  and  security  of 
the  many,  provided  only  they  are  permitted  to  do  as  they  please. 
Under  our  system  that  power  is  lodged  with  the  legislative  branch 
of  the  government.  It  belongs  to  that  department  to  exert  what 
are  known  as  the  police  powers  of  the  State,  and  to  determine, 
primarily  what  measures  are  appropriate  or  needful  for  the 
protection  of  the  public  morals,  the  public  health,  or  the  public 
safety. 

It  does  not  at  all  follow  that  every  statute  enacted  ostensibly 
for  the  promotion  of  these  ends  is  to  be  accepted  as  a  legitimate 
exertion  of  the  police  powers  of  the  State.  There  are,  of  neces- 
sity, limits  beyond  which  legislation  cannot  rightfully  go.  ... 
The  courts  are  not  bound  by  mere  forms,  nor  are  they  to  be 
misled  by  mere  pretenses.  They  are  at  liberty — indeed,  are 
under  a  solemn  duty — to  look  at  the  substance  of  things,  when- 
ever they  enter  upon  the  inquiry  whether  the  legislature  has 
transcended  the  limits  of  its  authority.  If,  therefore,  a  statute 
purporting  to  have  been  enacted  to  protect  the  public  health, 
the  public  morals,  or  the  public  safety,  has  no  real  or  substantial 
relation  to  those  objects,  or  is  a  palpable  invasion  of  rights 
secured  by  the  fundamental  law,  it  is  the  duty  of  the  courts  to 
so  adjudge,  and  thereby  give  effect  to  the  Constitution. 

Keeping  in  view  these  principles,  as  governing  the  relations 
of  the  judicial  and  legislative  departments  of  government  with 
each  other,  it  is  difficult  to  perceive  any  ground  for  the  judiciary 
to  declare  that  the  prohibition  by  Kansas  of  the  manufacture  or 
sale,  within  her  limits,  of  intoxicating  liquors  for  general  use 
there  as  a  beverage,  is  not  fairly  adapted  to  the  end  of  protecting 
the  community  against  the  evils  which  confessedly  result  from 
the  excessive  use  of  ardent  spirits.  There  is  no  justification  for 
holding  that  the  State,  under  the  guise  merely  of  police  regula- 
tions, is  here  aiming  to  deprive  the  citizen  of  his  constitutional 


380  CASES  ON  CONSTITUTIONAL  LAW. 

rights;  for  we  cannot  shut  out  of  view  the  fact,  within  the  knowl- 
edge of  all,  that  the  public  health,  the  public  morals,  and  the 
public  safety,  may  be  endangered  by  the  general  use  of  intoxi- 
cating drinks ;  nor  the  fact,  established  by  statistics  accessible  to 
everyone,  that  the  idleness,  disorder,  pauperism,  and  crime  exist- 
ing in  the  country  are,  in  some  degree  at  least,  traceable  to  this 
evil. 

It  is  contended  that,  as  the  primary  and  principal  use  of  beer 
is  as  a  beverage ;  as  their  respective  breweries  were  erected  when 
it  was  lawful  to  engage  in  the  manufacture  of  beer  for  every 
purpose ;  as  such  establishments  will  become  of  no  value  as  prop- 
erty; or,  at  least,  will  be  materially  diminished  in  value,  if  not 
employed  in  the  manufacture  of  beer  for  every  purpose;  the 
prohibition  upon  their  being  so  employed  is,  in  eifect,  a  taking 
of  property  for  public  use  without  compensation,  and  depriving 
the  citizen  of  his  property  without  due  process  of  law.  In  other 
words,  although  the  State,  in  the  exercise  of  her  police  powers, 
may  lawfully  prohibit  the  manufacture  and  sale,  within  her 
limits,  of  intoxicating  liquors  to  be  used  as  a  beverage,  legisla- 
tion having  that  object  in  view  cannot  be  enforced  against  those 
who,  at  the  time,  happen  to  own  property,  the  chief  value  of 
which  consists  in  its  fitness  for  such  manufacturing  purposes, 
unless  compensation  is  first  made  for  the  diminution  in  the  value 
of  their  property,  resulting  from  such  prohibitory  enactments. 

This  interpretation  of  the  Fourteenth  Amendment  is  inad- 
missible. It  cannot  be  supposed  that  the  States  intended,  by 
adopting  that  Amendment,  to  impose  restraints  upon  the  exercise 
of  their  powers  for  the  protection  of  the  safety,  health,  or  morals 
of  the  community.  In  respect  to  contracts,  the  obligations  of 
which  are  protected  against  hostile  state  legislation,  this  court  in 
Butchers'  Union  Co.  v.  Crescent  City  Co.,  Ill  U.  S.  746,  751, 
said  that  the  State  could  not,  by  any  contract,  limit  the  exercise 
of  her  power  to  the  prejudice  of  the  public  health  and  the  public 
morals.  So,  in  Stone  v.  Mississippi,  101  U.  S.  814,  816,  where 
the  Constitution  was  invoked  against  the  repeal  by  the  State  of  a 
charter,  granted  to  a  private  corporation,  to  conduct  a  lottery, 
and  for  which  that  corporation  paid  to  the  State  a  valuable  con- 
sideration in  money,  the  court  said :  ' '  No  legislature  can  bargain 
away  the  public  health  or  the  public  morals.  The  people  them- 
selves cannot  do  it,  much  less  their  servants.  .  .  .  Govern- 
ment is  organized  with  a  view  to  their  preservation,  and  cannot 
divest  itself  of  the  power  to  provide  for  them. ' '  Again,  in  New 
Orleans  Gas  Co.  v.  Louisiana  Light  Co.,  115  U.  S.  650,  672 :  "The 


MUGLER  v.  KANSAS.  381 

constitutional  prohibition  upon  state  laws  impairing  the  obliga- 
tion of  contracts  does  not  restrict  the  power  of  the  State  to  pro- 
the  public  health,  the  public  morals,  or  the  public  safety, 
as  the  one  or  the  other  may  be  involved  in  the  execution  of  such 
contracts.  Rights  and  privileges  arising  from  contracts  with  a 
State  are  subject  to  regulations  for  the  protection  of  the  public 
health,  the  public  morals,  and  the  public  safety,  in  the  same 
sense,  and  to  the  same  extent,  as  are  all  contracts  and  all  prop- 
erty, whether  owned  by  natural  persons  or  corporations." 

The  principle,  that  no  person  shall  be  deprived  of  life,  liberty, 
or  property,  without  due  process  of  law,  was  embodied,  in  sub- 
stance, in  the  constitutions  of  nearly  all,  if  not  all,  of  the  States 
at  the  time  of  the  adoption  of  the  Fourteenth  Amendment;  and 
it  has  never  been  regarded  as  incompatible  with  the  principle, 
equally  vital,  because  essential  to  the  peace  and  safety  of  society, 
that  all  property  in  this  country  is  held  under  the  implied  obli- 
gation that  the  owner's  use  of  it  shall  not  be  injurious  to  the 
community.  Beer  Co.  v.  Massachusetts,  97  U.  S.  25,  32;  Com- 
monwealth v.  Alger,  7  Cush.  53.  An  illustration  of  this  doctrine 
is  afforded  by  Patterson  v.  Kentucky,  97  U.  S.  501.  .  .  . 

[The  court  also  cites  United  States  v.  Dewitt,  9  Wall.  41; 
License  Tax  Cases,  5  Wall.  462;  Pervear  v.  Commonwealth,  5 
Wall.  475;  Fertilizing  Co.  v.  Hyde  Park,  97  U.  S.  659,  667; 
Pumpelly  v.  Green  Bay  Co.,  13  Wall.  166;  Transportation  Co. 
v.  Chicago,  99  U.  S.  635.] 

A  prohibition  simply  upon  the  use  of  property  for  purposes 
that  are  declared,  by  valid  legislation,  to  be  injurious  to  the 
health,  morals,  or  safety  of  the  community,  cannot,  in  any  just 
•ense,  be  deemed  a  taking  or  an  appropriation  of  property  for 
the  public  benefit.  Such  legislation  does  not  disturb  the  owner 
in  the  control  or  use  of  his  property  for  lawful  purposes,  nor 
restrict  his  right  to  dispose  of  it,  but  is  only  a  declaration  by  the 
State  that  its  use  by  any  one,  for  certain  forbidden  purposes, 
is  prejudicial  to  the  public  interests.  Nor  can  legislation  of  that 
character  come  within  the  Fourteenth  Amendment,  in  any  case, 
unless  it  is  apparent  that  its  real  object  is  not  to  protect  the  com- 
munity, or  to  promote  the  general  well-being,  but,  under  the 
guise  of  police  regulation,  to  deprive  the  owner  of  his  liberty 
and  property,  without  due  process  of  law.  The  power  which  tin* 
States  have  of  prohibiting  such  use  by  individuals  of  their  prop- 
erty as  will  be  prejudicial  to  the  health,  the  morals,  or  the  safety 
of  the  public,  is  not — and,  consistently  with  the  existence  and 
safety  of  organized  society,  cannot  be — burdened  with  the  con- 


382  CASES  ON  CONSTITUTIONAL  LAW. 

dition  that  the  State  must  compensate  such  individual  owners 
for  pecuniary  losses  they  may  sustain,  by  reason  of  their  not 
being  permitted,  by  a  noxious  use  of  their  property,  to  inflict 
injury  upon  the  community.  The  exercise  of  the  police  power 
by  the  destruction  of  property  which  is  itself  a  public  nuisance, 
or  the  prohibition  of  its  use  in  a  particular  way,  whereby  its 
value  becomes  depreciated,  is  very  different  from  taking  prop- 
erty for  public  use,  or  from  depriving  a  person  of  his  property 
without  due  process  of  law.  In  the  one  case,  a  nuisance  only  is 
abated;  in  the  other,  unoffending  property  is  taken  away  from 
an  innocent  owner. 

It  is  true,  that,  when  the  defendants  in  these  cases  purchased 
or  erected  their  breweries,  the  laws  of  the  State  did  not  forbid 
the  manufacture  of  intoxicating  liquors.  But  the  State  did  not 
thereby  give  any  assurance,  or  come  under  an  obligation,  that 
its  legislation  upon  that  subject  would  remain  unchanged.  .  .  . 

For  the  reasons  stated,  we  are  of  opinion  that  the  judgments 
of  the  Supreme  Court  of  Kansas  have  not  denied  to  Mugler,  the 
plaintiff  in  error,  any  right,  privilege,  or  immunity  secured  to 
him  by  the  Constitution  of  the  United  States,  and  its  judgment, 
in  each  case,  is,  accordingly,  affirmed. 

[MR.  JUSTICE  FIELD  delivered  a  separate  opinion.] 

NOTE. — As  to  other  legislation  for  the  protection  of  morals,  see  L'Hote 
v.  New  Orleans  (1900),  177  U.  S.  587  (regulation  of  prostitution);  Booth 
v.  Illinois  (1902),  184  U.  S.  425,  Otis  v.  Parker  (1903),  187  U.  S.  606, 
Gatewood  v.  North  Carolina  (1906),  203  U.  S.  531  (speculation);  Ah  Lin 
v.  Wittman  (1905),  198  U.  S.  500,  Marvin  v.  Trout  (1905),  199  U.  S.  212 
(gambling). 


LEISY  v.  HARDIN. 

SUPREME  COURT  OF  THE  UNITED  STATES.    1890. 
135  U.  S.  100;  34  Lawyers'  Ed.  128. 

Error  to  the  Supreme  Court  of  the  State  of  Iowa. 

[The  plaintiffs,  who  were  brewers  doing  business  at  Peoria, 
Illinois,  had  shipped  beer  in  sealed  packages  to  Keokuk,  Iowa, 
where  it  was  offered  for  sale  in  the  original  packages.  A  cer- 
tain quantity  of  the  beer  was  seized  by  Hardin,  the  city  marshal 
of  Keokuk  under  color  of  authority  of  the  statutes  of  Iowa  which 
forbade  the  manufacture  or  sale  of  intoxicating  liquors,  or  keep- 
ing them  with  intent  to  sell,  except  for  medicinal,  chemical, 


LEISY  v.  HARDIN.  383 

pharmaceutical  and  sacramental  purposes  as  allowed  in  the  act. 
The  plaintiffs  brought  replevin  against  Hardin  to  recover  the 
beer  seized,  and  the  local  court  gave  judgment  for  the  plaintiffs 
on  the  ground  that  the  State  enactment  was  invalid.  This 
judgment  was  reversed  by  the  Supreme  Court  of  Iowa.] 

MR.  CHIEF  JUSTICE  FULLER  .  .  .  delivered  the  opinion  of 
the  court. 

While,  by  virtue  of  its  jurisdiction  over  persons  and  property 
within  its  limits,  a  State  may  provide  for  the  security  of  the 
lives,  limbs,  health  and  comfort  of  persons,  and  the  protection 
of  property  so  situated,  yet  a  subject-matter  which  has  been  con- 
fided exclusively  to  Congress  by  the  Constitution  is  not  within 
the  jurisdiction  of  the  police  power  of  the  State,  unless  placed 
there  by  congressional  action.  Henderson  v.  Mayor  of  New 
York,  92  U.  S.  259 ;  Railroad  Co.  v.  Husen,  95  U.  S.  465 ;  Walling 
v.  Michigan,  116  U.  S.  466 ;  Bobbins  v.  Shelby  Taxing  District, 
120  U.  S.  489.  The  power  to  regulate  commerce  among  the  States 
is  a  unit,  but  if  particular  subjects  within  its  operation  do  not 
require  the  application  of  a  general  or  uniform  system,  the 
States  may  legislate  in  regard  to  them  with  a  view  to  local  needs 
and  circumstances,  until  Congress  otherwise  directs;  but  the 
power  thus  exercised  by  the  States  is  not  identical  in  its  extent 
with  the  power  to  regulate  commerce  among  the  States.  The 
power  to  pass  laws  in  respect  to  internal  commerce,  inspection 
laws,  quarantine  laws,  health  laws,  and  laws  in  relation  to 
bridges,  ferries,  and  highways,  belongs  to  the  class  of  powers 
pertaining  to  locality,  essential  to  local  intercommunication,  to 
the  progress  and  development  of  local  prosperity,  and  to  the 
protection,  the  safety,  and  welfare  of  society,  originally  neces- 
sarily belonging  to,  and  upon  the  adoption  of  the  Constitution 
reserved  by,  the  States,  except  so  far  as  falling  within  the  scope 
of  a  power  confided  to  the  general  government.  Where  the 
subject-matter  requires  a  uniform  system  as  between  the  States, 
the  power  controlling  it  is  vested  exclusively  in  Congress,  and 
••aiiiiot  be  encroached  upon  by  the  States;  but  where,  in  relation 
to  the  subject  matter,  different  rules  may  be  suitable  for  different 
localities,  the  States  may  exercise  powers  which,  though  they  may 
be  said  to  partake  of  the  nature  of  the  power  granted  to  the 
general  government,  are  strictly  not  such,  but  are  simply  local 
powers,  which  have  full  operation  until  or  unless  circumscribed 
by  the  action  of  Congress  in  effectuation  of  the  general  power. 
Cooley  v.  Port  Wardens  of  Philadelphia,  12  How.  299. 


384  CASES  ON  CONSTITUTIONAL  LAW. 

It  was  stated  in  the  32d  number  of  the  Federalist  that  the 
States  might  exercise  concurrent  and  independent  power  in  all 
cases  but  three :  First,  where  the  power  was  lodged  exclusively 
in  the  federal  constitution;  second,  where  it  was  given  to  the 
United  States  and  prohibited  to  the  States;  third,  where,  from 
the  nature  and  subjects  of  the  power,  it  must  be  necessarily 
exercised  by  the  national  government  exclusively.  But  it  is 
easy  to  see  that  Congress  may  assert  an  authority  under  one  of 
the  granted  powers,  which  would  exclude  the  exercise  by  the 
States  upon  the  same  subject  of  a  different  but  similar  power, 
between  which  and  that  possessed  by  the  general  government  no 
inherent  repugnancy  existed. 

Whenever,  however,  a  particular  power  of  the  general  govern- 
ment is  one  which  must  necessarily  be  exercised  by  it,  and  Con- 
gress remains  silent,  this  is  not  only  not  a  concession  that  the 
powers  reserved  by  the  States  may  be  exerted  as  if  the  specific 
power  had  not  been  elsewhere  reposed,  but,  on  the  contrary,  the 
only  legitimate  conclusion  is  that  the  general  government  in- 
tended that  power  should  not  be  affirmatively  exercised,  and  the 
action  of  the  States  cannot  be  permitted  to  effect  that  which 
would  be  incompatible  with  such  intention.  Hence,  inasmuch  as 
interstate  commerce,  consisting  in  the  transportation,  purchase, 
sale,  and  exchange  of  commodities,  is  national  in  its  character, 
and  must  be  governed  by  a  uniform  system,  so  long  as  Congress 
does  not  pass  any  law  to  regulate  it,  or  allowing  the  States  so  to 
do,  it  thereby  indicates  its  will  that  such  commerce  shall  be  free 
and  untrammelled.  County  of  Mobile  v.  Kimball,  102  U.  S.  691 ; 
Brown  v.  Houston,  114  U.  S.  622,  631 ;  Wabash,  St.  Louis,  etc., 
Railway  v.  Illinois,  118  U.  S.  557;  Bobbins  v.  Shelby  Taxing 
District,  120  U.  S.  489,  493-. 

That  ardent  spirits,  distilled  liquors,  ale  and  beer,  are  subjects 
of  exchange,  barter  and  traffic,  like  any  other  commodity  in 
which  a  right  of  traffic  exists,  and  are  so  recognized  by  the  usages 
of  the  commercial  world,  the  laws  of  Congress  and  the  decisions 
of  courts,  is  not  denied.  Being  thus  articles  of  commerce,  can  a 
State,  in  the  absence  of  legislation  on  the  part  of  Congress,  pro- 
hibit their  importation  from  abroad  or  from  a  sister  State?  or 
when  imported  prohibit  their  sale  by  the  importer  ?  If  the  im- 
portation cannot  be  prohibited  without  the  consent  of  Congress, 
when  does  property  imported  from  abroad,  or  from  a  sister 
State,  so  become  part  of  the  common  mass  of  property  within  a 
State  as  to  be  subject  to  its  unimpeded  control  ?  .  .  . 

Although  the  precise  question  before  us  was  not  ruled  in  Gib- 


LEISY  v.  HAKDJN.  385 

bons  v.  Ogden  and  Brown  v.  Maryland,  yet  we  think  it  was  vir- 
tually involved  and  answered,  and  that  this  is  demonstrated, 
among  other  cases,  in  Bowman  v.  Chicago  &  Northwestern  Rail- 
way Co.,  125  U.  S.,  465.  In  the  latter  case,  section  1553  of  the 
Code  of  the  State  of  Iowa  as  amended  by  c.  143  of  the  acts  of  the 
twentieth  (irneral  Assembly  in  1886,  forbidding  common  car- 
riers to  bring  intoxicating  liquors  into  the  State  from  any  other 
State  or  Territory,  without  first  being  furnished  with  a  cer- 
tificate as  prescribed,  was  declared  invalid,  because  essentially  a 
regulation  of  commerce  among  the  States,  and  not  sanctioned  by 
the  authority,  express  or  implied,  of  Congress.  The  opinion  of 
the  court,  delivered  by  Mr.  Justice  Matthews,  the  concurring 
opinion  of  Mr.  Justice  Field,  and  the  dissenting  opinion  by  Mr. 
Justice  Harlan,  on  behalf  of  Mr.  Chief  Justice  Waite,  Mr.  Jus- 
tice Gray,  and  himself,  discussed  the  question  involved  in  all 
its  phases ;  and  while  the  determination  of  whether  the  right  of 
transportation  of  an  article  of  commerce  from  one  State  to 
another  includes  by  necessary  implication  the  right  of  the  con- 
signee to  sell  it  in  unbroken  packages  at  the  place  where  the 
transportation  terminates  was  in  terms  reserved,  yet  the  argu- 
ment of  the  majority  conducts  irresistibly  to  that  conclusion,  and 
we  think  we  cannot  do  better  than  repeat  the  grounds  upon 
which  the  decision  was  made  to  rest.  It  is  there  shown  that  the 
transportation  of  freight  or  of  the  subjects  of  commerce,  for  the 
purpose  of  exchange  or  sale,  is  beyond  all  question  a  constituent 
of  commerce  itself;  that  this  was  the  prominent  idea  in  the 
minds  of  the  framers  of  the  Constitution,  when  to  Congress  was 
committed  the  power  to  regulate  commerce  among  the  several 
States;  that  the  power  to  prevent  embarrassing  restrictions  by 
any  State  was  the  end  desired ;  that  the  power  was  given  by  the 
same  words  and  in  the  same  clause  by  which  was  conferred  power 
to  regulate  commerce  with  foreign  nations ;  and  that  it  would  be 
absurd  to  suppose  that  the  transmission  of  the  subjects  of  trade 
from  the  State  of  the  buyer,  or  from  the  place  of  production  to 
the  market,  was  not  contemplated,  for  without  that  there  could 
be  no  consummated  trade,  either  with  foreign  nations  or  among 
the  States.  It  is  explained  that  where  State  laws  alleged  to  be 
regulations  of  commerce  among  the  States,  have  been  sustained, 
they  were  laws  which  related  to  bridges  or  dams  across  streams, 
wholly  within  the  State,  or  police  or  health  laws,  or  to  subjects 
of  a  kindred  nature,  not  strictly  of  commercial  regulation.  But 
the  transportation  of  passengers  or  of  merchandise  from  one 
State  to  another  is  in  its  nature  national,  admitting  of  but  one 

E.  C.  L.-25 


386  CASES  ON  CONSTITUTIONAL  LAW. 

regulating  power;  and  it  was  to  guard  against  the  possibility 
of  commercial  embarrassments  which  would  result  if  one  State 
could  directly  or  indirectly  tax  persons  or  property  passing 
through  it,  or  prohibit  particular  property  from  entrance  into 
the  State,  that  the  power  of  regulating  commerce  among  the 
States  was  conferred  upon  the  federal  government.  .  .  . 

The  observations  of  Mr.  Justice  Catron,  in  The  License  Cases, 
5  How.  504,  599,  are  quoted  to  the  effect  that  what  does  not  be- 
long to  commerce  is  within  the  jurisdiction  of  the  police 
power  of  the  State,  but  that  which  does  belong  to  commerce  is 
within  the  jurisdiction  of  the  United  States;  that  to  extend  the 
police  power  over  subjects  of  commerce  would  be  to  make  com- 
merce subordinate  to  that  power,  and  would  enable  the  State  to 
bring  within  the  police  power  "any  article  of  consumption  that 
a  State  might  wish  to  exclude,  whether  it  belonged  to  that  which 
was  drunk,  or  to  food  and  clothing ;  and  with  nearly  equal  claims 
to  propriety,  as  malt  liquors,  and  the  products  of  fruits  other 
than  grapes  stand  on  no  higher  ground  than  the  light  wines  of 
this  and  other  countries,  excluded  in  effect  by  the  law  as  it  now 
stands.  And  it  would  be  only  another  step  to  regulate  real  or 
supposed  extravagance  in  food  and  clothing."  And  Mr.  Justice 
Matthews  thus  proceeds,  p.  493 :  ' '  For  the  purpose  of  protect- 
ing its  people  against  the  evils  of  intemperance,  it  has  the  right 
to  prohibit  the  manufacture  within  its  limits  of  intoxicating 
liquors ;  it  may  also  prohibit  all  domestic  commerce  in  them  be- 
tween its  own  inhabitants,  whether  the  articles  are  introduced 
from  other  States  or  from  foreign  countries ;  it  may  punish  those 
who  sell  them  in  violation  of  its  laws;  it  may  adopt  any  meas- 
ures tending,  even  indirectly  and  remotely,  to  make  the  policy 
effective — until  it  passes  the  line  of  power  delegated  to  Congress 
under  the  Constitution.  It  cannot,  without  the  consent  of  Con- 
gress, express  or  implied,  regulate  commerce  between  its  peo- 
ple and  those  of  the  other  States  of  the  Union  in  order  to  effect 
its  end,  however  desirable  such  a  regulation  might  be.  ... 
Can  it  be  supposed  that  by  omitting  any  express  declaration  on 
the  subject,  Congress  has  intended  to  submit  to  the  several 
States  the  decision  of  the  question  in  each  locality  of  what  shall 
and  what  shall  not  be  articles  of  traffic  in  the  interstate  com- 
merce of  the  country  ?  If  so,  it  has  left  to  each  State,  according 
to  its  own  caprice  and  arbitrary  will,  to  discriminate  for  or 
against  every  article  grown,  produced,  manufactured  or  sold  in 
any  State  and  sought  to  be  introduced  as  an  article  of  com- 
merce into  any  other.  If  the  State  of  Iowa  may  prohibit  the 


LEISY  v.  HARDIN.  387 

importation  of  intoxicating  liquors  from  all  other  States,  it  may 
also  include  tobacco,  or  any  other  article,  the  use  or  abuse  of 
which  it  may  deem  deleterious.  It  may  not  choose,  even,  to  be 
governed  by  considerations  growing  out  of  the  health,  comfort 
or  peace  of  the  community.  Its  policy  may  be  directed  to  other 
ends.  It  may  choose  to  establish  a  system  directed  to  the  pro- 
motion and  benefit  of  its  own  agriculture,  manufactures  or  arts 
of  any  description,  and  prevent  the  introduction  and  sale  within 
its  limits  of  any  or  of  all  articles  that  it  may  select  as  coming 
into  competition  with  those  which  it  seeks  to  protect.  The  police 
power  of  the  State  would  extend  to  such  cases,  as  well  as  to 
those  in  which  it  was  sought  to  legislate  in  behalf  of  the  health, 
peace  and  morals  of  the  people.  In  view  of  the  commercial 
anarchy  and  confusion  that  would  result  from  the  divers  exer- 
tions of  power  by  the  several  States  of  the  Union,  it  cannot  be 
supposed  that  the  Constitution  or  Congress  have  intended  to 
limit  the  freedom  of  commercial  intercourse  among  the  people 
of  the  several  States."  .  .  . 

The  plaintiffs  in  error  are  citizens  of  Illinois,  are  not  pharma- 
cists, and  have  no  permit,  but  import  into  Iowa  beer,  which  they 
sell  in  original  packages,  as  described.  Under  our  decision  in 
Bowman  v.  Chicago,  etc.,  Railway  Co.,  supra,  they  had  the  right 
to  import  this  beer  into  that  State,  and  in  the  view  which  we 
have  expressed  they  had  the  right  to  sell  it,  by  which  act  alone 
it  would  become  mingled  in  the  common  mass  of  property  within 
the  State.  Up  to  that  point  of  time,  we  hold  that  in  the  absence 
of  congressional  permission  to  do  so,  the  State  had  no  power  to 
interfere  by  seizure,  or  any  other  action,  in  prohibition  of  im- 
portation and  sale  by  the  foreign  or  non-resident  importer. 
Whatever  our  individual  views  may  be  as  to  the  deleterious  or 
dangerous  qualities  of  particular  articles,  we  cannot  hold  that 
any  articles  which  Congress  recognizes  as  subjects  of  interstate 
commerce  are  not  such,  or  that  whatever  are  thus  recognized  can 
be  controlled  by  state  laws  amounting  to  regulations,  while  they 
retain  that  character;  although,  at  the  same  time,  if  directly 
dangerous  in  themselves,  the  State  may  take  appropriate  meas- 
ures to  guard  against  injury  before  it  obtains  complete  juris- 
diction over  them.  To  concede  to  a  State  the  power  to  exclude, 
directly  or  indirectly,  articles  so  situated,  without  congressional 
permission,  is  to  concede  to  a  majority  of  the  people  of  a  State, 
represented  in  the  state  legislature,  the  power  to  regulate  com- 
mercial intercourse  between  the  States,  by  determining  what 
shall  be  its  subjects,  when  that  power  was  distinctly  granted  to 


388  CASES  ON  CONSTITUTIONAL  LAW. 

be  exercised  by  the  people  of  the  United  States,  represented  in 
Congress,  and  its  possession  by  the  latter  was  considered  essen- 
tial to  that  more  perfect  Union  which  the  Constitution  was 
adopted  to  create.  Undoubtedly,  there  is  difficulty  in  drawing 
the  line  between  the  municipal  powers  of  the  one  government 
and  the  commercial  powers  of  the  other,  but  when  that  line  is 
determined,  in  the  particular  instance,  accommodation  to  it,  with- 
out serious  inconvenience,  may  readily  be  found,  to  use  the  lan- 
guage of  Mr.  Justice  Johnson,  in  Gibbons  v.  Ogden,  9  Wheat. 
1,  238,  in  "a  frank  and  candid  co-operation  for  the  general 
good." 

The  legislation  in  question  is  to  the  extent  indicated  repugnant 
to  the  third  clause  of  section  8  of  Art.  I  of  the  Constitution  of 
the  United  States,  and  therefore  the  judgment  of  the  Supreme 
Court  of  Iowa  is 

Reversed  and  the  cause  remanded  for  further  proceedings  not 
inconsistent  with  this  opinion. 

MR.  JUSTICE  GRAY,  with  whom  concurred  MR.  JUSTICE  HAR- 
LAN  and  MR.  JUSTICE  BREWER,  dissenting.  .  .  . 

NOTE. — The  adjustment  between  the  police  power  of  the  States  and  the 
power  of  Congress  to  regulate  interstate  and  foreign  commerce  has  led  to 
several  conflicts  as  to  which  should  control  the  traffic  in  intoxicating  liquors. 
In  the  License  Cases  (1847),  5  Howard,  504,  the  court  held  that  in  the 
absence  of  any  assertion  of  the  paramount  authority  of  Congress  the  police 
power  of  the  States  should  govern;  but  when  the  principal  case  was  decided 
the  doctrine  of  "the  silence  of  Congress"  had  developed  and  the  License 
Cases  were  overruled.  Had  the  court  chosen  to  hold  that  the  police  power 
of  the  State  continued  to  control  until  it  conflicted  with  the  superior  author- 
ity of  some  express  enactment  of  Congress,  its  view  would  have  been  sup- 
ported by  the  uniform  attitude  of  organized  society  toward  the  liquor 
traffic  as  far  back  as  historic  records  run.  In  the  oldest  laws  known,  the 
Babylonian  Code  of  Hammurabi  (about  2250  B.  C.)  sees.  108-110,  there  are 
police  regulations  concerning  the  sale  of  liquor.  The  decision  in  the  prin- 
cipal case  was  followed  by  the  enactment  of  the  Wilson  Act  of  1890,  26  Stat. 
at  Large,  313,  by  which  intoxicating  liquors  transported  in  interstate  com- 
merce were  made  subject  to  the  police  power  of  the  States  immediately 
"upon  their  arrival"  therein.  The  constitutionality  of  this  act  was  sus- 
tained in  In  re  Eahrer  (1891),  140  U.  S.  545,  but  its  effectiveness  was  much 
restricted,  from  the  standpoint  of  the  States  seeking  to  exclude  the  traffic 
in  liquor,  by  the  court's  decision  in  Ehodes  v.  Iowa  (1898),  170  U.  S.  412, 
that  the  word  "arrival"  meant  actual  delivery  to  the  consignee  and  not 
merely  actual  arrival  within  the  State  of  destination.  See  also  Rossi  v. 
Pennsylvania  (1915),  238  U.  S.  62.  Dissatisfaction  with  this  result  led  to 
the  enactment  in  1913  of  the  Webb-Kenyon  Act,  37  Stat.  at  Large,  699, 
which  prohibits  the  shipment  into  a  State  of  any  intoxicating  liquor  which 
"is  intended  by  any  person  interested  therein  to  be  received,  possessed, 


ESCANABA  COMPANY  v.  CHICAGO.  389 

•old,  or  in  any  manner  used,  either  in  the  original  package  or  otherwise,  in 
violation  of  any  law  of  such  State. ' '  The  act  was  vetoed  by  President  Taf  t 
in  his  message  of  February  28,  1913,  the  substance  of  which  appears  in  this 
paragraph: 

One  of  the  main  purposes  of  the  union  of  the  States  under  the 
Constitution  was  to  relieve  the  commerce  between  the  States  of 
the  burdens  which  local  State  jealousies  and  purposes  had  in  the 
past  imposed  upon  it;  and  the  interstate  commerce  clause  in  the 
Constitution  was  one  of  the  chief  reasons  for  its  adoption.  The 
power  was  there  conferred  upon  Congress.  Now,  if  to  the  discre- 
tion of  Congress  is  committed  the  question  whether  in  interstate 
commerce  we  shall  return  to  the  old  methods  prevailing  before  the 
Constitution  or  not,  it  would  seem  to  be  conferring  upon  Congress 
the  power  to  amend  the  Constitution  by  ignoring  or  striking  out 
one  of  its  most  important  provisions.  It  was  certainly  intended 
by  that  clause  to  secure  uniformity  in  the  regulation  of  commerce 
between  the  States.  To  suspend  that  purpose  and  to  permit  the 
States  to  exercise  their  old  authority  before  they  became  States,  to 
interfere  with  commerce  between  them  and  their  neighbors,  is  to 
defeat  the  constitutional  purpose. 

The  act  was  passed  over  the  President's  veto.  Its  validity  has  not  yet 
been  determined,  but  it  has  been  held  that  it  applies  only  to  shipments  of 
liquor  intended  to  be  held  or  sold  in  violation  of  the  laws  of  the  States  into 
which  it  is  sent.  Adams  Express  Co.  v.  Kentucky  (1915),  238  U.  S.  190. 
Liquor  kept  in  a  State  to  be  disposed  of  exclusively  by  means  of  mail  orders 
from  other  States  is  under  the  protection  of  the  commerce  clause.  Heyman 
v.  Hays  (1915),  236  U.  S.  178. 


SECTION  3.    THE  PRESERVATION  OP  SAFETY  AND  ORDEB. 
ESCANABA  COMPANY  v.  CHICAGO. 

SUPREME  Count  or  THE  UNITED  STATES.    1882. 
107  U.  8.  678;  27  Lawyers'  Ed.  442. 

Appeal  from  the  Circuit  Court  of  the  United  States  for  the 
Northern  District  of  Illinois. 

[The  Escanaba  and  Lake  Michigan  Transportation  Company, 
a  corporation  formed  under  the  laws  of  Michigan,  owns  and 
operates  a  line  of  steamers  plying  between  various  ports  on  Lake 
Michigan,  but  principally  between  Escanaba,  Mich.,  and  docks 
on  the  south  branch  of  the  Chicago  river.  The  navigable  part 
of  this  stream  lies  almost  wholly  within  the  city  of  Chicago,  and 
consists  of  a  main  stream  and  two  branches  which  divide  the  city 
into  three  parts  known  locally  as  the  North  Side,  South  Side  and 
West  Side.  The  most  important  part  of  the  business  district  lies 


390  CASES  ON  CONSTITUTIONAL  LAW. 

on  the  South  Side,  and  is  reached  from  the  other  sections  by 
numerous  bridges  over  which  there  is  a  constant  stream  of  traf- 
fic, and  which  are  provided  with  draws  through  which  vessels 
navigating  the  river  may  pass.  In  order  to  prevent  undue  delay, 
particularly  at  the  beginning  and  close  of  business,  the  city  of 
Chicago,  duly  authorized  thereto  by  the  State  of  Illinois,  enacted 
ordinances  providing  that  between  the  hours  of  6  and  7  in  the 
morning  and  5 :30  and  6 :30  in  the  evening,  Sundays  excepted, 
the  draws  should  not  be  opened,  while  between  7  A.  M.  and 
5 :30  P.  M.  no  bridge  should  be  opened  for  a  longer  period  than 
ten  minutes,  and  when  closed  it  should  be  kept  closed  for  at 
least  ten  minutes,  if  necessary,  in  order  to  enable  foot-passengers 
and  vehicles  in  waiting  to  pass  over.] 

MR.  JUSTICE  FIELD  delivered  the  opinion  of  the  court.    .    .    . 

The  limitation  of  ten  minutes  for  the  passage  of  the  draws  by 
vessels  seems  to  have  been  eminently  wise  and  proper  for  the 
protection  of  the  interests  of  all  parties.  Ten  minutes  is  ample 
time  for  any  vessel  to  pass  the  draw  of  a  bridge,  and  the  allow- 
ance of  more  time  would  subject  foot-passengers,  teams,  and 
other  vehicles  to  great  inconvenience  and  delays* 

The  complainant  principally  objects  to  this  ten  minutes'  lim- 
itation, and  to  the  assignment  of  the  morning  and  evening  hour 
to  pedestrians  and  vehicles.  It  insists  that  the  navigation  of  the 
river  and  its  branches  should  not  be  thus  delayed ;  and  that  the 
rights  of  commerce  by  vessels  are  paramount  to  the  rights  of 
commerce  by  any  other  way. 

But  in  this  view  the  complainant  is  in  error.  The  rights  of 
each  class  are  to  be  enjoyed  -without  invasion  of  the  equal  rights 
of  others.  Some  concession  must  be  made  on  every  side  for  the 
convenience  and  the  harmonious  pursuit  of  different  occupa- 
tions. Independently  of  any  constitutional  restrictions,  nothing 
would  seem  more  just  and  reasonable,  or  better  designed  to  meet 
the  wants  of  the  population  of  an  immense  city,  consistently 
with  the  interests  of  commerce,  than  the  ten  minutes'  rule,  and 
the  assignment  of  the  morning  and  evening  hours  which  the  city 
ordinance  has  prescribed. 

The  power  vested  in  the  general  government  to  regulate  inter- 
state and  foreign  commerce  involves  the  control  of  the  waters 
of  the  United  States  which  are  navigable  in  fact,  so  far  as  it  may 
be  necessary  to  insure  their  free  navigation,  when  by  them- 
selves or  their  connection  with  other  waters  they  form  a  con- 
tinuous channel  for  commerce  among  the  States  or  with  foreign 


ESCANABA  COMPANY  v.  CHICAGO.  391 

countries.  The  Daniel  Ball,  10  Wall.  557.  Such  is  the  case  with 
the  Chicago  River  and  its  branches.  The  common-law  test  of  the 
navigability  of  waters,  that  they  are  subject  to  the  ebb  and  flow 
of  the  tide,  grew  out  of  the  fact  that  in  England  there  are  no 
waters  navigable  in  fact,  or  to  any  great  extent,  which  are  not 
also  affected  by  the  tide.  That  test  has  long  since  been  discarded 
in  this  country.  Vessels  larger  than  any  which  existed  in  Eng- 
land, when  that  test  was  established,  now  navigate  rivers  and 
inland  lakes  for  more  than  a  thousand  miles  beyond  the  reach 
of  any  tide.  That  test  only  becomes  important  when  consider- 
ing the  rights  of  riparian  owners  to  the  bed  of  the  stream,  as  in 
some  States  it  governs  in  that  matter. 

The  Chicago  River  and  its  branches  must,  therefore,  be  deemed 
navigable  waters  of  the  United  States,  over  which  Congress  under 
its  commercial  power  may  exercise  control  to  the  extent  neces- 
sary to  protect,  preserve,  and  improve  their  free  navigation. 

But  the  States  have  full  power  to  regulate  within  their  limits 
matters  of  internal  police,  including  in  that  general  designation 
whatever  will  promote  the  peace,  comfort,  convenience,  and  pros- 
perity of  their  people.  This  power  embraces  the  construction  of 
roads,  canals,  and  bridges,  and  the  establishment  of  ferries,  and 
it  can  generally  be  exercised  more  wisely  by  the  States  than  by  a 
distant  authority.  They  are  the  first  to  see  the  importance  of 
such  means  of  internal  communication,  and  are  more  deeply 
concerned  than  others  in  their  wise  management.  Illinois  is 
more  immediately  affected  by  the  bridges  over  the  Chicago  River 
and  its  branches  than  any  other  State,  and  is  more  directly  con- 
cerned for  the  prosperity  of  the  city  of  Chicago,  for  the  con- 
venience and  comfort  of  its  inhabitants,  and  the  growth  of  its 
commerce.  And  nowhere  could  the  power  to  control  the  bridges 
in  that  city,  their  construction,  form,  and  strength,  and  the  size 
of  their  draws,  and  the  manner  and  times  of  using  them,  be  bet- 
ter vested  than  with  the  State,  or  the  authorities  of  the  city  upon 
whom  it  has  devolved  that  duty.  When  its  power  is  exercised,  so 
as  to  unnecessarily  obstruct  the  navigation  of  the  river  or  its 
branches,  Congress  may  interfere  and  remove  the  obstruction. 
If  the  power  of  the  State  and  that  of  the  Federal  government 
come  in  conflict,  the  latter  must  control  and  the  former  yield. 
This  necessarily  follows  from  the  position  given  by  the  Constitu- 
tion to  legislation  in  pursuance  of  it.  as  the  supreme  law  of  the 
land.  But  until  Congress  acts  on  the  subject,  the  power  of  the 
State  over  bridges  across  its  navigable  streams  is  plenary.  This 
doctrine  has  been  recognized  from  the  earliest  period,  and  ap- 


392  CASES  ON  CONSTITUTIONAL  LAW. 

proved  in  repeated  cases,  the  most  notable  of  which  are  Willson 
v.  The  Blackbird  Creek  Marsh  Co.,  2  Pet.  245,  decided  in  1829, 
and  Gilman  v.  Philadelphia,  3  Wall.  713,  decided  in  1865.  .  .  . 
[Here  follow  citations  from  these  cases  and  from  Pound  v.  Turck, 
95  U.  S.  459.] 

The  doctrine  declared  in  these  several  decisions  is  in  accord- 
ance with  the  more  general  doctrine  now  firmly  established,  that 
the  commercial  power  of  Congress  is  exclusive  of  State  authority 
only  when  the  subjects  upon  which  it  is  exercised  are  national  in 
their  character,  and  admit  and  require  uniformity  of  regulation 
affecting  alike  all  the  States.  Upon  such  subjects  only  that 
authority  can  act  which  can  speak  for  the  whole  country.  Its 
non-action  is  therefore  a  declaration  that  they  shall  remain  free 
from  all  regulation.  Welton  v.  State  of  Missouri,  91  U.  S.  275 ; 
Henderson  v.  Mayor  of  New  York,  92  id.,  259 ;  County  of  Mobile 
v.  Kimball,  102  id.,  691. 

On  the  other  hand,  where  the  subjects  on  which  the  power  may 
be  exercised  are  local  in  their  nature  or  operation,  or  constitute 
mere  aids  to  commerce,  the  authority  of  the  State  may  be  exerted 
for  their  regulation  and  management  until  Congress  interferes 
and  supersedes  it.  As  said  in  the  case  last  cited :  ' '  The  uniform- 
ity of  commercial  regulations  which  the  grant  to  Congress  was 
designed  to  secure  against  conflicting  State  provisions,  was  neces- 
sarily intended  only  for  cases  where  such  uniformity  is  prac- 
ticable. Where,  from  the  nature  of  the  subject  or  the  sphere  of 
its  operations,  the  case  is  local  and  limited,  special  regulations, 
adapted  to  the  immediate  locality,  could  only  have  been  con- 
templated. State  action  upon  such  subjects  can  constitute  no 
interference  with  the  commercial  power  of  Congress,  for  when 
that  acts  the  State  authority  is  superseded.  Inaction  of  Con- 
gress upon  these  subjects  of  a  local  nature  or  operation,  unlike 
its  inaction  upon  matters  affecting  all  the  States  and  requiring 
uniformity  of  regulation,  is  not  to  be  taken  as  a  declaration  that 
nothing  shall  be  done  in  respect  to  them,  but  is  rather  to  be 
deemed  a  declaration  that  for  the  time  being  and  until  it  sees  fit 
to  act  they  may  be  regulated  by  State  authority." 

Bridges  over  navigable  streams,  which  are  entirely  within  the 
limits  of  a  State,  are  of  the  latter  class.  The  local  authority  can 
better  appreciate  their  necessity,  and  can  better  direct  the  man- 
ner in  which  they  shall  be  used  and  regulated  than  a  government 
at  a  distance.  It  is,  therefore,  a  matter  of  good  sense  and  prac- 
tical wisdom  to  leave  their  control  and  management  with  the 
States,  Congress  having  the  power  at  all  times  to  interfere  and 


ESCANABA  COMPANY  v.  CHICAGO.  393 

supersede  their  authority  whenever  they  act  arbitrarily  and  to 
the  injury  of  commerce. 

It  is.  however,  contended  here  that  Congress  has  interfered, 
and  by  its  legislation  expressed  its  opinion  as  to  the  navigation  of 
( 'hit-ago  River  and  its  branches;  that  it  has  done  so  by  acts 
recognizing  the  ordinance  of  1787,  and  by  appropriations  for 
the  improvement  of  the  harbor  of  Chicago. 

The  ordinance  of  1787  for  the  government  of  the  territory  of 
the  United  States  northwest  of  the  Ohio  River,  contained  in  its 
fourth  article  a  clause  declaring  that,  "The  navigable  waters 
leading  into  the  Mississippi  and  St.  Lawrence,  and  the  carrying 
places  between  them,  shall  be  common  highways  and  forever  free, 
as  well  to  the  inhabitants  of  the  said  territory  as  to  the  citizens 
of  the  United  States  and  those  of  any  other  States  that  may  be 
admitted  into  the  confederacy,  without  any  tax,  impost,  or  duty 
therefor." 

The  ordinance  was  passed  July  13,  1787,  one  year  and  nearly 
eight  months  before  the  Constitution  took  effect ;  and  although  it 
appears  to  have  been  treated  afterwards  as  in  force  in  the  terri- 
tory, except  as  modified  by  Congress,  and  by  the  act  of  May  7, 
1800,  c.  41,  creating  the  Territory  of  Indiana,  and  by  the  act  of 
February  3,  1809,  c.  13,  creating  the  Territory  of  Illinois,  the 
rights  and  privileges  granted  by  the  ordinance  are  expressly 
secured  to  the  inhabitants  of  those  Territories;  and  although  the 
act  of  April  18,  1818.  c.  67,  enabling  the  people  of  Illinois  Terri- 
tory to  form  a  constitution  and  State  government,  and  the  reso- 
lution of  Congress  of  Dec.  3,  1818,  declaring  the  admission  of 
the  State  into  the  Union,  refer  to  the  principles  of  the  ordinance 
according  to  which  the  constitution  was  to  be  formed,  its  pro- 
visions could  not  control  the  authority  and  powers  of  the  State 
after  her  admission.  Whatever  the  limitation  upon  her  powers 
as  a  government  whilst  in  a  territorial  condition,  whether  from 
the  ordinance  of  1787  or  the  legislation  of  Congress,  it  ceased  to 
have  any 'operative  force,  except  as  voluntarily  adopted  by  her, 
after  she  became  a  State  of  the  Union.  On  her  admission  she  at 
once  became  entitled  to  and  possessed  of  all  the  rights  of  domin- 
ion and  sovereignty  which  belonged  to  the  original  States.  She 
was  admitted,  and  could  be  admitted,  only  on  the  same  footing 
with  them.  The  language  of  the  resolution  admitting  her  is  "on 
an  equal  footing  with  the  original  States  in  all  respects  what- 
''  3  Stat.  536.  Equality  of  constitutional  right  and  power 
is  the  condition  of  all  the  States  of  the  Union,  old  and  new. 
Illinois,  therefore,  as  was  well  observed  by  counsel,  could  after- 


394  CASES  ON  CONSTITUTIONAL  LAW. 

wards  exercise  the  same  power  over  rivers  within  her  limits  that 
Delaware  exercised  over  Black  Bird  Creek,  and  Pennsylvania 
over  the  Schuylkill  River.  Pollard's  Lessee  v.  Hagan,  3  How. 
212 ;  Permoli  v.  First  Municipality,  id.  589 ;  Strader  v.  Graham, 
10  id.  82. 

But  aside  from  these  considerations,  we  do  not  see  that  the 
clause  of  the  ordinance  upon  which  reliance  is  placed  materially 
affects  the  question  before  us.  That  clause  contains  two  provi- 
sions :  one  that  the  navigable  waters  leading  into  the  Mississippi 
and  the  St.  Lawrence  shall  be  common  highways  to  the  inhabi- 
tants; and  the  other,  that  they  shall  be  forever  free  to  them 
without  any  tax,  impost,  or  duty  therefor.  The  navigation  of  the 
Illinois  River  is  free,  so  far  as  we  are  informed,  from  any  tax, 
impost,  or  duty,  and  its  character  as  a  common  highway  is  not 
affected  by  the  fact  that  it  is  crossed  by  bridges.  All  highways, 
whether  by  land  or  water,  are  subject  to  such  crossings  as  the 
public  necessities  and  convenience  may  require,  and  their  char- 
acter as  such  is  not  changed,  if  the  crossings  are  allowed  under 
reasonable  conditions,  and  not  so  as  to  needlessly  obstruct  the 
use  of  the  highways.  In  the  sense  in  which  the  terms  are  used 
by  publicists  and  statesmen,  free  navigation  is  consistent  with 
ferries  and  bridges  across  a  river  for  the  transit  of  persons  and 
merchandise  as  the  necessities  and  convenience  of  the  community 
may  require.  .  .  . 

As  to  the  appropriations  by  Congress,  no  money  has  been  ex- 
pended on  the  improvement  of  the  Chicago  River  above  the  first 
bridge  from  the  lake,  known  as  Rush  Street  Bridge.  No  bridge, 
therefore,  interferes  with  the  navigation  of  any  portion  of  the 
river  which  has  been  thus  improved.  But,  if  it  were  otherwise,  it 
is  not  perceived  how  the  improvement  of  the  navigability  of  the 
stream  can  affect  the  ordinary  means  of  crossing  it  by  ferries 
and  bridges.  The  free  navigation  of  a  stream  does  not  require 
an  abandonment  of  those  means.  To  render  the  action  of  the 
State  invalid  in  constructing  or  authorizing  the  construction  of 
bridges  over  one  of  its  navigable  streams,  the  general  govern- 
ment must  directly  interfere  so  as  to  supersede  its  authority  and 
annul  what  it  has  done  in  the  matter.  .  .  . 

From  any  view  of  this  case,  we  see  no  error  in  the  action  of 
the  court  below,  and  this  decree  must  accordingly  be 

Affirmed. 


CITY  OF  CHICAGO  v.  STURGES.  395 

CITY  OF  CHICAGO  v.  STURGES. 

SUPREME  COUKT  or  THE  UNITED  STATES.    1911. 
222  U.  8.  313;  56  Lawyers'  Ed.  215. 

Error  to  the  Supreme  Court  of  the  State  of  Illinois. 

MB.  JUSTICE  LURTON  delivered  the  opinion  of  the  court. 

The  only  question  under  this  writ  of  error  is  as  to  the  validity 
of  a  statute  of  the  State  of  Illinois  entitled  "An  Act  to  indem- 
nify the  owners  of  property  for  damages  occasioned  by  mobs  and 
riots."  Laws  of  1887,  p.  237.  .  .  . 

It  was  urged  in  the  Illinois  courts  that  the  act  violated  the 
guarantee  of  due  process  of  law  and  the  equal  protection  of  the 
law  as  provided  by  the  Fourteenth  Amendment  of  the  Constitu- 
tion of  the  United  States. 

By  the  provisions  of  the  statute  referred  to,  a  city  is  made 
liable  for  three-fourths  of  the  damage  resulting  to  property 
situated  therein,  caused  by  the  violence  of  any  mob  or  riotous 
assemblage  of  more  than  twelve  persons,  not  abetted  or  permitted 
by  the  negligent  or  wrongful  act  of  the  owner,  etc.  If  the  dam- 
age be  to  property  not  within  the  city,  then  the  county  in  which 
it  is  located  is  in  like  manner  made  responsible.  . 

It  is  said  that  the  act  denies  to  the  city  due  process  of  law, 
since  it  imposes  liability  irrespective  of  any  question  of  the  power 
of  the  city  to  have  prevented  the  violence,  or  of  negligence  in 
the  use  of  its  power.  This  was  the  interpretation  placed  upon 
the  act  by  the  Supreme  Court  of  Illinois.  Does  the  law  as  thus 
interpreted  deny  due  process  of  law  ?  That  the  law  provides  for 
a  judicial  hearing  and  a  remedy  over  against  those  primarily 
liable  narrows  the  objection  to  the  single  question  of  legislative 
power  to  impose  liability  regardless  of  fault. 

It  is  a  general  principle  of  our  law  that  there  is  no  individual 
liability  for  an  act  which  ordinary  human  care  and  foresight 
could  not  guard  against.  It  is  also  a  general  principle  of  the 
same  law  that  a  loss  from  any  cause  purely  accidental  must  rest 
where  it  chances  to  fall.  But  behind  and  above  these  general 
principles  which  the  law  recognizes  as  ordinarily  prevailing, 
there  lies  the  legislative  power,  which,  in  the  absence  of  orpnnic 
restraint,  may  for  the  general  welfare  of  srviety,  impose  obliga- 
tions and  responsibilities  otherwise  non-existent. 

Primarily,  governments  exist  for  the  maintenance  of  social 
order.  Hence  it  is  that  the  obligation  of  the  government  to 


396  CASES  ON  CONSTITUTIONAL  LAW. 

protect  life,  liberty  and  property  against  the  conduct  of  the  in- 
different, the  careless  and  the  evil-minded  may  be  regarded  as 
lying  at  the  very  foundation  of  the  social  compact.  A  recogni- 
tion of  this  supreme  obligation  is  found  in  those  exertions  of  the 
legislative  power  which  have  as  an  end  the  preservation  of  social 
order  and  the  protection  of  the  welfare  of  the  public  and  of  the 
individual.  If  such  legislation  be  reasonably  adapted  to  the  end 
in  view,  affords  a  hearing  before  judgment,  and  is  not  forbidden 
by  some  other  affirmative  provision  of  constitutional  law,  it  is 
not  to  be  regarded  as  denying  due  process  of  law  under  the  pro- 
visions of  the  Fourteenth  Amendment. 

The  law  in  question  is  a  valid  exercise  of  the  police  power  of 
the  State  of  Illinois.  It  rests  upon  the  duty  of  the  State  to 
protect  its  citizens  in  the  enjoyment  and  possession  of  their 
acquisitions,  and  is  but  a  recognition  of  the  obligation  of  the 
State  to  preserve  social  order  and  the  property  of  the  citizen 
against  the  violence  of  a  riot  or  a  mob. 

The  State  is  the  creator  of  subordinate  municipal  governments. 
It  vests  in  them  the  police  powers  essential  to  the  preservation 
of  law  and  order.  It  imposes  upon  them  the  duty  of  protecting 
property  situated  within  their  limits  from  the  violence  of  such 
public  breaches  of  the  peace  as  are  mobs  and  riots.  This  duty 
and  obligation  thus  entrusted  to  the  local  subordinate  govern- 
ment is  by  this  enactment  emphasized  and  enforced  by  imposing 
upon  the  local  community  absolute  liability  for  property  losses 
resulting  from  the  violence  of  such  public  tumults. 

The  policy  of  imposing  liability  upon  a  civil  subdivision  of 
government  exercising  delegated  police  power  is  familiar  to  every 
student  of  the  common  law.  .We  find  it  recognized  in  the  begin- 
ning of  the  police  system  of  Anglo-Saxon  people.  Thus,  "The 
Hundred,"  a  very  early  form  of  civil  subdivision,  was  held 
answerable  for  robberies  committed  within  the  division.  By  a 
series  of  statutes,  beginning  possibly  in  1285,  in  the  statutes  of 
Winchester,  13  Edw.  I,  c.  1,  coming  on  down  to  the  27th  Eliza- 
beth, c.  13,  the  Riot  Act  of  George  I  (1  Geo.  I,  St.  2)  and  Act  of 
8  George  II,  c.  16,  we  may  find  a  continuous  recognition  of  the 
principle  that  a  civil  subdivision  entrusted  with  the  duty  of 
protecting  property  in  its  midst  and  with  police  power  to  dis- 
charge the  function,  may  be  made  answerable  not  only  for  negli- 
gence affirmatively  shown,  but  absolutely  as  not  having  afforded 
a  protection  adequate  to  the  obligation.  Statutes  of  a  similar 
character  have  been  enacted  by  several  of  the  States  and  held 


CITY  OF  CHICAGO  v.  STURGES.  397 

valid  exertions  of  the  police  power.  Darlington  v.  Mayor,  etc., 
of  New  York,  31  N.  Y.  164 ;  Fauvia  v.  New  Orleans,  20  La.  Ann. 
410;  County  of  Allegheny  v.  Gibson,  etc.,  90  Pa.  St.  397.  The 
imposition  of  absolute  liability  upon  the  community  when  prop- 
erty is  destroyed  through  the  violence  of  a  mob  is  not,  therefore, 
an  unusual  police  regulation.  Neither  is  it  arbitrary,  as  not 
resting  upon  reasonable  grounds  of  policy.  Such  a  regulation  has 
a  tendency  to  deter  the  lawless,  since  the  sufferer  must  be  com- 
pensated by  a  tax  burden  which  will  fall  upon  all  property, 
including  that  of  the  evildoers  as  members  of  the  community. 
It  is  likewise  calculated  to  stimulate  the  exertions  of  the  indif- 
ferent and  the  law-abiding  to  avoid  the  falling  of  a  burden  which 
they  must  share  with  the  lawless.  In  that  it  directly  operates  on 
and  affects  public  opinion,  it  tends  strongly  to  the  upholding  of 
the  empire  of  the  law. 

There  remains  the  contention  that  the  act  discriminates  be- 
tween cities  and  villages  or  other  incorporated  towns. 

The  liability  is  imposed  upon  the  city  if  the  property  be  within 
the  limits  of  a  city ;  if  not,  then  upon  the  county.  The  classifica- 
tion is  not  an  unreasonable  one.  A  city  is  presumptively  the 
more  populous  and  better  organized  community.  As  such  it  may 
well  be  singled  out  and  made  exclusively  responsible  for  the  con- 
sequence of  riots  and  mobs  to  property  therein. 

The  county,  which  includes  the  city  and  other  incorporated 
subdivisions,  is,  not  unreasonably,  made  liable  to  all  sufferers 
whose  property  is  not  within  the  limits  of  a  city. 

The  power  of  the  State  to  impose  liability  for  damage  and 
injury  to  property  from  riots  and  mobs  includes  the  power  to 
make  a  classification  of  the  subordinate  municipalities  upon 
which  the  responsibility  may  be  imposed.  It  is  a  matter  for  the 
exercise  of  legislative  discretion,  and  the  equal  protection  of  the 
law  is  not  denied  where  the  classification  is  not  so  unreasonable 
or  extravagant  as  to  be  a  mere  arbitrary  mandate. 

The  cases  upon  this  subject  are  so  numerous  as  to  need  no 
further  elucidation. 

Among  the  later  cases  are  Williams  v.  Arkansas,  217  U.  S.  79 ; 
Watson  v.  Maryland,  218  U.  S.  173 ;  Chicago,  B.  &  Q.  B.  R.  Co. 
v.  McGuire,  219  U.  S.  549 ;  House  v.  Mayes,  219  U.  S.  270. 

Judgment  affirmed. 


398      CASES  ON  CONSTITUTIONAL  LAW. 

BARRETT,  PRESIDENT  OF  ADAMS  EXPRESS  CO.  v. 
CITY  OF  NEW  YORK. 

CITY  OF  NEW  YORK  v.  BARRETT,  PRESIDENT  OF 
ADAMS  EXPRESS  CO. 

SUPREME  COURT  OF  THE  UNITED  STATES.    1914. 
232  U.  S.  14]  58  Lawyers'  Ed.  483. 

Appeal  and  cross-appeal  from  the  Circuit  Court  of  the  United 
States  for  the  Southern  District  of  New  York. 

MR.  JUSTICE  HUGHES  delivered  the  opinion  of  the  court. 

This  suit  was  brought  to  restrain  the  enforcement  against  the 
Adams  Express  Company  of  a  group  of  ordinances  of  the  Board 
of  Aldermen  of  the  City  of  New  York,  upon  the  ground  that,  as 
applied  to  that  company,  these  ordinances  constitute  an  uncon- 
stitutional interference  with  interstate  commerce  and  deny  to  it 
the  equal  protection  of  the  laws.  The  ordinances  are  contained 
in  Chapter  7  of  the  Code  of  Ordinances  adopted  in  the  year 
1906,  as  amended.  .  .  . 

The  chapter  relates  to  specified  businesses  in  which  no  one  is 
permitted  to  engage  except  under  an  annual  license  granted  by 
the  Mayor  and  revocable  by  him.  Among  these  is  the  business 
of  "expressmen"  (§§  305,  306).  It  is  provided  that  no  person 
is  to  be  licensed  "except  a  citizen  of  the  United  States  or  one 
who  has  regularly  declared  intention  to  become  a  citizen" 
(§  307).  The  license  fee  is  "for  each  express  wagon,"  five  dol- 
lars, and  "for  each  driver  of  any  licensed  vehicle,"  fifty  cents, 
with  provision  for  renewal  at  one-half  these  rates  ( §  308 ) .  Every 
person  driving  a  licensed  "express"  is  to  be  "licensed  as  such 
driver,  and  every  application-  for  such  license  shall  be  indorsed, 
in  writing,  by  two  reputable  residents  of  The  City  of  New  York 
testifying  to  the  competence  of  the  applicant"  (§  315).  Every 
vehicle  "kept  or  used  for  the  conveyance  of  baggage,  packages, 
parcels,  and  other  articles  within  or  through  The  City  of  New 
York  for  pay"  is  to  be  deemed  a  public  express  (§  330).  It  is  to 
bear  a  designation  according  with  its  official  number  ( §  331 ) . 
Its  owner  is  to  give  a  bond  to  the  State  for ' '  every  vehicle  licensed 
in  a  penal  sum  of  $100,  with  sufficient  surety,  approved  by  the 
Mayor  or  Chief  of  the  Bureau  of  Licenses,  conditioned  for  the 
safe  and  prompt  delivery"  of  all  articles  (§  332).  Provision  is 
also  made  for  the  regular  inspection  of  ' '  all  licensed  vehicles  and 
places  of  business"  (§374),  the  report  of  any  change  of  resi- 
dence to  the  Bureau  of  Licenses  (id.),  the  exhibition  of  licenses 


ADAMS  EXPRESS  CO.  v.  NEW  YORK.  399 

upon  demand  (§375),  and  the  display  of  the  prescribed  letters 
and  numbers  (§376).  Penalties  are  provided  for  the  violation 
of  these  requirements,  and  any  person  carrying  on  any  business 
regulated  by  the  ordinance,  without  license,  is  guilty  of  a  mis- 
demeanor (§§  307,  315,  379). 

The  Adams  Express  Company,  an  unincorporated  association 
organized  under  the  laws  of  New  York,  has  been  engaged  in  inter- 
state commerce,  as  a  common  carrier  of  packages,  since  the  year 
1854.  It  transacts  its  business  in  many  States;  and  in  the  City 
of  Xew  York  it  handles  daily  about  50,000  interstate  shipments, 
employing  341  wagons  and  68  automobiles.  About  one-half  of 
these  wagons  are  stabled  in  Jersey  City.  .  .  .  The  inter- 
state business,  however,  in  the  number  of  packages,  comprises 
ninety-eight  per  cent  of  the  total  business  transacted  in  New 
York  City,  and,  it  being  impracticable  to  effect  a  separation,  the 
local  and  the  other  intrastate  shipments  are  handled  in  the  same 
vehicles,  and  by  the  same  men,  that  are  employed  in  connection 
with  the  interstate  transportation.  *  It  was  not  until  recently 
that  the  City  sought  to  compel  the  Company,  in  the  transaction 
of  this  business,  to  comply  with  its  license  ordinances,  although 
there  have  been  ordinances  requiring  licenses  for  both  express 
wagons  and  their  drivers  for  over  fifty  years.  ...  In  the 
fall  of  1910,  however,  at  a  time  when  the  business  of  the  Com- 
pany was  interrupted  by  a  strike  of  its  drivers,  and  it  was  en- 
deavoring to  replace  those  who  had  stopped  work,  the  City 
through  its  officers  undertook  to  enforce  the  ordinances  with 
respect  to  all  the  wagons  and  drivers  of  the  Company,  threaten- 
ing to  arrest  unlicensed  drivers  of  unlicensed  wagons  notwith- 
standing they  might  be  engaged  in  interstate  transportation,  and 
to  remove,  if  necessary,  unlicensed  wagons  from  the  streets.  This 
was  the  occasion  of  the  present  suit. 

The  Circuit  Court  held  that  sections  305  and  306  were  inop- 
erative so  far  as  they  purported  to  require  the  complainant  to 
obtain  a  local  license  for  transacting  its  interstate  business,  and 
further,  that  the  requirement  of  licenses  as  to  express  automo- 
biles and  chauffeurs  had  been  superseded  by  a  state  statute 
(Laws  of  1910,  c.  374).  To  this  extent  the  City,  and  its  officers 
who  were  codefendants,  were  enjoined.  But  with  respect  to  the 
payment  of  license  fees  for  express  wagons  and  drivers,  and 
the  other  regulations  which  we  have  briefly  described,  the  court 
hold  that  the  enactments  were  valid  and  an  injunction  was  re- 
fused. 189  Fed.  Rep.  268.  Both  parties  appeal,  the  Company 


400  CASES  ON  CONSTITUTIONAL  LAW. 

insisting  that  it  was  entitled  to  the  entire  relief  sought,  and  the 
City,  that  no  relief  whatever  should  have  been  granted. 

In  restraining  the  enforcement  of  sections  305  and  306,  as 
stated,  we  think  that  the  court  was  right.  ...  If  the  above- 
mentioned  sections  are  to  be  deemed  to  require  that  a  license 
must  be  obtained  as  a  condition  precedent  to  conducting  the 
interstate  business  of  an  express  company,  we  are  of  the  opinion 
that,  so  construed,  they  would  be  clearly  unconstitutional.  It  is 
insisted  that,  under  the  authority  of  the  State,  the  ordinances 
were  adopted  in  the  exercise  of  the  police  power.  But  that  does 
not  justify  the  imposition  of  a  direct  burden  upon  interstate 
commerce.  Undoubtedly,  the  exertion  of  the  power  essential  to 
assure  needed  protection  to  the  community  may  extend  inciden- 
tally to  the  operations  of  a  carrier  in  its  interstate  business,  pro- 
vided it  does  not  subject  that  business  to  unreasonable  demands 
and  is  not  opposed  to  Federal  legislation.  Smith  v.  Alabama, 
124  U.  S.  465 ;  Hennington  v.  Georgia,  163  U.  S.  299 ;  N.  Y.,  N. 
H.  &  H.  R.  E.  Co.  v.  New  York,  165  U.  S.  628 ;  Lake  Shore  & 
M.  S.  Ry.  Co.  v.  Ohio,  173  U.  S.  285.  It  must,  however,  be  con- 
fined to  matters  which  are  appropriately  of  local  concern.  It 
must  proceed  upon  the  recognition  of  the  right  secured  by  the 
Federal  Constitution.  Local  police  regulations  cannot  go  so  far  as 
to  deny  the  right  to  engage  in  interstate'  commerce,  or  to  treat  it 
as  a  local  privilege  and  prohibit  its  exercise  in  the  absence  of  a 
local  license.  Crutcher  v.  Kentucky,  141  U.  S.  47,  58 ;  Robbins  v. 
Taxing  Disk,  120  U.  S.  489,  496 ;  Leloup  v.  Mobile,  127  U.  S.  640, 
645 ;  Stoutenburgh  v.  Hennick,  129  U.  S.  141,  148 ;  Rearick  v. 
Pennsylvania,  203  U.  S.  507;  International  Text  Book  Co.  v. 
Pigg,  217  U.  S.  91,  109;  Oklahoma  v.  Kansas  Natural  Gas 
Co.,  221  U.  S.  229,  260;  Buck' Stove  &  Range  Co.  v.  Vickers,  226 
U.  S.  205,  215 ;  Crenshaw  v.  Arkansas,  227  U.  S.  389 ;  Minnesota 
Rate  Cases,  230  U.  S.  352,  401.  As  was  said  by  this  court  in 
Crutcher  v.  Kentucky,  141  U.  S.  p.  58,  "a  state  law  is  unconsti- 
tutional and  void  which  requires  a  party  to  take  out  a  license  for 
carrying  on  interstate  commerce,  no  matter  how  specious  the 
pretext  may  be  for  imposing  it. ' ' 

The  requirements  of  sections  305  and  306,  with  the  schedule 
of  fees  in  section  308,  cannot  be  regarded  as  imposing  a  fee, 
or  tax,  for  the  use  of  the  streets ;  if  they  were  such,  the  question 
would  at  once  arise  as  to  the  validity  of  the  discrimination 
involved  in  such  an  exaction.  Nor  can  they  be  considered  as  a 
regulation  in  the  interest  of  safety  in  street  traffic.  Other  ordi- 
nances provide  for  the  "rules  of  the  road"  to  which  wagons  of 


ADAMS  EXPRESS  CO.  v.  NEW  YORK.  401 

express  companies,  as  well  as  those  of  other  persons,  are  subject 
(Code  of  Ordinances,  c.  12).  The  sections  now  under  consider- 
ation constitute  a  regulation  of  the  express  "business."  Article 
I  is  entitled,  "Business  Requiring  a  License;"  section  305,  con- 
taining the  enumeration,  provides  that ' '  the  following  businesses 
must  be  duly  licensed;"  and  section  306  that  "no  person  shall 
engage  in  or  carry  on  any  such  business  without  a  license  there- 
for" under  a  stated  penalty.  .  .  .  The  right  of  public  con- 
trol, in  requiring  such  a  license,  is  asserted  by  virtue  of  the  char- 
acter of  the  employment,  but  while  such  a  requirement  may  be 
proper  in  the  case  of  local  or  intrastate  business,  it  cannot  be 
justified  as  a  prerequisite  to  the  conduct  of  the  business  that  is 
interstate.  Not  only  is  the  latter  protected  from  the  action  of 
the  State,  either  directly  or  through  its  municipalities,  in  laying 
direct  burdens  upon  it,  but,  in  the  present  instance,  Congress 
has  exercised  its  authority  and  has  provided  its  own  scheme  of 
regulation  in  order  to  secure  the  discharge  of  the  public  obliga- 
tions that  the  business  involves.  Act  of  June  29,  1906,  c.  3591, 
34  Stat.  584;  Adams  Express  Co.  v.  Croninger,  226  U.  S.  491, 
505 ;  United  States  v.  Adams  Express  Co.,  229  U.  S.  381. 

It  would  seem  to  follow,  necessarily,  that  the  annual  license 
fees  prescribed  by  section  308  .  .  .  cannot  be  exacted,  so 
far  as  the  interstate  business  is  concerned.  They  cannot  be 
regarded  as  coming  within  the  category  of  inspection  fees,  which 
are  sustained  when  fairly  commensurate  with  the  cost  of  local 
supervision  of  such  matters  as  are  under  local  control.  (Western 
Union  Tel.  Co.  v.  New  Hope,  187  U.  S.  419,  425 ;  Atlantic,  etc., 
Tel.  Co.  v.  Philadelphia,  190  U.  S.  160,  164.)  The  provisions  of 
section  308  are  inseparably  connected  with  those  of  sections  305 
and  306.  The  sums  fixed  "for  each  express  wagon"  and  "for 
each  driver"  measure  the  amount  to  be  exacted  for  the  granting 
of  the  license  required  for  the  carrying  on  of  business.  And  it  is 
difficult  to  see  how  the  payment  can  be  enforced  as  to  the  inter- 
state business  if  the  taking  out  of  the  license  therefor  cannot  be 
compelled. 

Similar  considerations  are  controlling  with  respect  to  the  pro- 
vision of  section  332  for  the  giving  of  license  bonds.  This  in 
terms  is  related  to  the  requirement  of  section  305.  It  is  provided 
that  a  bond  shall  be  given  "for  each  and  every  vehicle  licensed" 
and  it  is  to  be  conditioned  "for  the  safe  and  prompt  delivery  of 
all  baggage,  packages,"  etc.,  entrusted  to  the  owner  or  driver 
"of  any  such  licensed  express."  As  applied  to  the  Company's 
business  of  interstate  transportation,  it  must  fall  with  the  pro- 

E  C.  L.— 56 


402  CASES  ON  CONSTITUTIONAL  LAW. 

vision  regarding  the  license,  and,  further,  it  must  be  regarded 
as  repugnant  to  the  exclusive  control  asserted  by  Congress  in 
occupying  the  field  of  regulation  with  regard  to  the  obligations 
to  be  assumed  by  interstate  express  carriers.  (Adams  Express 
Co.  v.  Croninger,  supra;  Southern  Ry.  Co.  v.  Eeid,  222  U.  S. 
424;  Same  v.  Reid  &  Beam,  id.,  444,  447.) 

Section  315  provides  for  separate  licenses  for  drivers.     We 
may  assume  the  propriety  of  suitable  provision  to  insure  careful 
driving  over  the  city  streets  and  the  existence  of  ample  power  to 
meet  this  local  necessity.    It  is  also  clear  that  regulations  for  this 
purpose,  when  the  movement  of  interstate  traffic  is  involved, 
should  be  entirely  reasonable  and  should  not  arbitrarily  restrict 
the  facilities  upon  which  it  must  depend.     If  the  provision  of 
section  315  could  be  regarded  as  severable  from  the  requirement 
of  a  license  for  the  conduct  of  business,  we  should  still  have  great 
difficulty  in  sustaining  it  as  a  reasonable  regulation  with  regard 
to  drivers  employed  in  the  interstate  transportation  which  has 
been  described.    Reading  section  315  in  connection  with  section 
307,  as  we  understand  the  City  contends  it  should  be  read,  no 
driver  can  be  licensed  except  a  citizen  of  the  United  States  or 
one  who  has  regularly  declared  intention  to  become  a  citizen,  and 
the  assurance  of  his  qualifications  does  not  depend  simply  upon 
the  applicant's  ability  to  meet  appropriate  tests  so  as  to  satisfy 
the  official  judgment,  but  the  application  must  be  accompanied 
by  the  indorsement  in  writing  of  two  reputable  residents  of  the 
city  testifying  to  his  competence.    When  the  importance  to  the 
entire  country  of  promptness  and  facility  in  the  conduct  of  the 
business  of  the  express  companies  in  New  York  City,  and  the 
obvious  convenience  of  the-ir  being  able  to  secure  drivers  in  Jer- 
sey City  as  well  as  in  New  York,  are  considered,  the  provision 
would  seem  to  be  unnecessarily  burdensome.    We  are  not  called 
upon,  however,  to  decide  this  point.    Section  315  relates  exclu- 
sively to  drivers  of  a  ''licensed  hack  or  express."    There  is  no 
such  provision  as  to  drivers  of  wagons  generally.     While  the 
driver's  license  is  separate,  the  ordinance  refers  only  to  such 
drivers  as  are  employed  in  the  business  for  the  carrying  on  of 
which  a  license  may  be  required.    Whatever  might  otherwise  be 
the  City's  power  as  to  the  regulation  of  drivers,  this  provision 
cannot  be  divorced  from  the  license  scheme  of  which  it  is  a 
part.     . 

We  conclude  that  the  complainant  was  entitled  to  an  injunction 
restraining  the  enforcement  of  the  ordinances  in  question  against 
the  Company  with  respect  to  the  conduct  of  its  interstate  business 


ATLANTIC  COAST  LINE  RY.  CO.  v.  GEORGIA.    403 

and  its  wagons  and  drivers  employed  in  interstate  commerce. 
In  this  view  it  is  unnecessary  to  consider  whether  the  ordinances 
have  been  superseded,  as  to  automobiles,  by  the  state  statute. 

The  decree  of  the  Circuit  Court  is  reversed  and  the  case  is 
remanded  to  the  District  Court,  with  direction  to  enter  a  decree 
in  favor  of  the  complainant  in  conformity  with  this  opinion. 

It  is  so  ordered. 


ATLANTIC  COAST  LINE  RAILROAD  COMPANY  v.  STATE 
OF  GEORGIA. 

SUPREME  COUBT  or  THE  UNITED  STATES.    1914. 
234  U.  8.  280;  58  Lawyers'  Ed.  1312. 

Error  to  the  Court  of  Appeals  of  the  State  of  Georgia. 

MB.  JUSTICE  HUGHES  delivered  the  opinion  of  the  court. 

The  Atlantic  Coast  Line  Railroad  Company,  the  plaintiff  in 
error,  was  convicted  of  violating  a  statute  of  the  State  of  Georgia 
known  as  the  "headlight  law."  Pub.  Laws  (Ga.),  1908,  pp.  50, 
51 ;  Civil  Code,  §§  2697,  2698.  In  defense  it  was  insisted  that 
the  act  contravened  the  commerce  clause  and  the  Fourteenth 
Amendment  of  the  Constitution  of  the  United  States.  .  .  . 

Tin-  material  portions  of  the  statute  are  as  follows: 

"Section  1.  Be  it  enacted  by  the  General  Assembly  of  Geor- 
gia, and  it  is  hereby  enacted  by  authority  of  the  same,  That  all 
railroad  companies  are  hereby  required  to  equip  and  maintain 
each  and  every  locomotive  used  by  such  company  to  run  on  its 
main  line  after  dark  with  a  good  and  sufficient  headlight  which 
shall  consume  not  less  than  three  hundred  watts  at  the  arc.  and 
with  a  reflector  not  less  than  twenty-three  inches  in  diameter, 
and  to  keep  the  same  in  good  condition.  The  word  main  line  as 
used  herein  means  all  portions  of  the  railway  line  not  used  solely 
as  yards,  spurs,  and  side  tracks. "  . 

The  contention  is  made  that  this  act  deprives  the  company  of 
its  liberty  of  contract,  and  of  its  property,  without  due  process 
of  law.  It  compels  the  disuse  of  a  material  part  of  the  company's 
present  equipment  and  the  substitution  of  a  new  appliance.  The 
use  of  locomotive  headlights,  however,  is  directly  related  to 
-safety  in  operation.  It  cannot  be  denied  that  the  protective 
power  of  government,  subject  to  which  the  carrier  conducts  its 
business  and  manages  its  property,  extends  as  well  to  the  regu- 


404  CASES  ON  CONSTITUTIONAL  LAW. 

lation  of  this  part  of  the  carrier's  equipment  as  to  apparatus 
for  heating  cars  or  to  automatic  couplers.  The  legislature  may 
require  an  adequate  headlight,  and  whether  the  carrier's  practice 
is  properly  conducive  to  safety,  or  a  new  method  affording 
greater  protection  should  be  substituted,  is  a  matter  for  the  legis- 
lative judgment.  But  it  is  insisted  that  the  legislature  has  gone 
beyond  the  limits  of  its  authority  in  making  the  specific  require- 
ments contained  in  the  act  as  to  the  character  and  power  of  the 
light  and  the  dimensions  of  the  reflector.  This  argument  ignores 
the  established  principle  that  if  its  action  is  not  arbitrary — is 
reasonably  related  to  a  proper  purpose — the  legislature  may 
select  the  means  which  it  deems  to  be  appropriate  to  the  end  to 
be  achieved.  It  is  not  bound  to  content  itself  with  general  direc- 
tions when  it  considers  that  more  detailed  measures  are  neces- 
sary to  attain  a  legitimate  object.  Particularization  has  had 
many  familiar  illustrations  in  cases  where  there  has  been  a  con- 
viction of  the  need  of  it,  as,  for  example,  in  building  regulations 
and  in  provisions  for  safeguarding  persons  in  the  use  of  danger- 
ous machinery.  So  far  as  governmental  power  is  concerned,  we 
know  of  no  ground  for  an  exception  in  the  case  of  a  locomotive 
headlight. 

It  cannot  be  said  that  the  legislature  acted  arbitrarily  in  pre- 
scribing electric  light,  in  preference  to  others,  or  that,  having 
made  this  selection,  it  was  not  entitled  to  impose  minimum 
requirements  to  be  observed  in  the  use  of  the  light.  . 
Assuming  that  there  is  room  for  differences  of  opinion,  this  fact 
does  not  preclude  the  exercise  of  the  legislative  discretion.  So 
far  as  the  question  was  one  simply  of  expediency — as  to  the  best 
method  to  provide  the  desired  security — it  was  within  the  com- 
petency of  the  legislature  to  decide  it.  N.  Y.  &  N.  E.  R.  R.  Co. 
v.  Bristol,  151  U.  S.  556,  571 ;  C.  B.  &  Q.  Ry.  Co.  v.  Drainage 
Com'rs,  200  U.  S.  561,  583,  584;  McLean  v.  Arkansas,  211  U.  S. 
539,  547,  548 ;  C.  B.  &  Q.  Ry.  Co.  v.  McGuire,  219  U.  S.  549,  568, 
569,  and  cases  there  cited.  .  .  . 

We  conclude  that  there  is  no  valid  objection  to  the  statute 
upon  the  ground  that  it  deprives  the  carrier  of  liberty  or  prop- 
erty without  due  process  of  law.  . 

Finally,  it  is  urged  that  the  statute  constitutes  an  unwarrant- 
able interference  with  interstate  commerce.  The  locomotive, 
with  respect  to  which  the  accusation  was  made,  was  at  the  time 
being  regularly  used  in  the  hauling  of  interstate  freight  trains 
over  the  company's  main  line  of  railroad  and  was  equipped 
with  an  oil  headlight.  The  statute,  as  the  Supreme  Court  of  the 


ATLANTIC  COAST  LINE  RY.  CO.  v.  GEORGIA.    405 

State  said,  was  uot  directed  against  interstate  commerce,  but  it 
was  held  that  it  incidentally  applied  to  locomotives  used  in  haul- 
ing interstate  trains  while  these  were  moving  on  the  main  line 
in  the  State  of  Georgia.  This  being  so,  the  act  is  said  to  be 
repugnant  to  the  exclusive  power  of  Congress.  It  is  argued  that 
if  Georgia  may  prescribe  an  electric  headlight,  other  States 
through  which  the  road  runs  may  require  headlights  of  a  dif- 
ferent sort;  that,  for  example,  some  may  demand  the  use  of 
acetylene,  and  that  others  may  require  oil;  and  that,  if  state 
requirements  conflict,  it  will  be  necessary  to  carry  additional 
apparatus  and  to  make  various  adjustments  at  state  lines  which 
would  delay  and  inconvenience  interstate  traffic. 

The  argument  is  substantially  the  same  as  that  which  was 
strongly  presented  to  the  court  in  New  York,  New  Haven  & 
Hartford  R.  R.  Co.  v.  New  York,  165  U.  S.  628,  where  the  plain- 
tiff in  error  was  held  subject  to  penalty  for  the  violation  of  a 
New  York  statute  which  in  substance  made  it  unlawful  for  any 
steam  railroad  doing  business  in  that  State  to  heat  its  passenger 
cars,  on  any  other  than  mixed  trains,  by  any  stove  or  furnace 
kept  inside  of  the  car  or  suspended  therefrom.  The  railroad 
company  was  a  Connecticut  corporation  having  but  a  few  miles 
of  road  within  the  State  of  New  York  and  operating  through 
trains  from  New  York  through  Connecticut  to  Massachusetts. 
As  this  court  said  in  its  opinion,  the  argument  was  made  that  "a 
conflict  between  state  regulations  in  respect  of  the  heating  of 
passenger  cars  used  in  interstate  commerce  would  make  safe  and 
rapid  transportation  impossible ;  that  to  stop  an  express  train  on 
its  trip  from  New  York  to  Boston  at  the  Connecticut  line  in  order 
that  passengers  may  leave  the  cars  heated  as  required  by  New 
York,  and  get  into  other  cars  heated  in  a  different  mode  in  con- 
formity with  the  laws  of  Connecticut,  and  then  at  the  Massachu- 
setts line  to  get  into  cars  heated  by  still  another  mode  as  required 
by  the  laws  of  that  Commonwealth,  would  be  a  hardship  on 
travel  that  could  not  be  endured."  But  the  court  ruled  that 
these  "possible  inconveniences"  could  not  affect  "the  question 
of  power  in  each  State  to  make  such  reasonable  regulations  for 
the  safety  of  passengers  on  interstate  trains  as,  in  its  judgment, 
all  things  considered,  is  appropriate  and  effective."  165  U.  S. 
632,  633. 

In  thus  deciding,  the  court  applied  the  settled  principle  that, 
in  the  absence  of  legislation  by  Congress,  the  States  are  not 
denied  the  exercise  of  their  power  to  secure  safety  in  the  physical 
operation  of  railroad  trains  within  their  territory*  even  though 


406  CASES  ON  CONSTITUTIONAL  LAW. 

such  trains  are  used  in  interstate  commerce.  That  has  been  the 
law  since  the  beginning  of  railroad  transportation.  It  was  not 
intended  that,  pending  Federal  action,  the  use  of  such  agencies, 
which,  unless  carefully  guarded,  was  fraught  with  danger  to  the 
community,  should  go  unregulated,  and  that  the  States  should 
be  without  authority  to  secure  needed  local  protection.  The 
requirements  of  a  State,  of  course,  must  not  be  arbitrary  or  pass 
beyond  the  limits  of  a  fair  judgment  as  to  what  the  exigency 
demands,  but  they  are  not  invalid  because  another  State,  in  the 
exercise  of  a  similar  power,  may  not  impose  the  same  regula- 
tion. We  may  repeat  what  was  said  in  Smith  v.  Alabama,  124 
U.  S.  465,  481,  482:  "It  is  to  be  remembered  that  railroads 
are  not  natural  highways  of  trade  and  commerce.  .  .  .  The 
places  where  they  may  be  located,  and  the  plans  according  to 
which  they  must  be  constructed,  are  prescribed  by  the  legisla- 
tion of  the  State.  Their  operation  requires  the  use  of  instru- 
ments and  agencies  attended  with  special  risks  and  dangers,  the 
proper  management  of  which  involves  peculiar  knowledge,  train- 
ing, skill,  and  care.  The  safety  of  the  public  in  person  and 
property  demands  the  use  of  specific  guards  and  precautions. 
t  .  .  The  rules  prescribed  for  their  construction  and  for 
their  management  and  operation,  designed  to  protect  persons 
and  property,  otherwise  endangered  by  their  use,  are  strictly 
within  the  limits  of  the  local  law.  They  are  not  per  se  regula- 
tions of  commerce;  it  is  only  when  they  operate  as  such  in  the 
circumstances  of  their  application,  and  conflict  with  the  expressed 
or  presumed  will  of  Congress  exerted  on  the  same  subject,  that 
they  can  be  required  to  give  way  to  the  supreme  authority  of 
the  Constitution."  See  also  Nashville,  etc.,  Rwy.  Co.  v.  Ala- 
bama, 128  U.  S.  96 ;  Hennihgton  v.  Georgia,  163  U.  S.  299 ;  N.  Y., 
N.  H.  &  H.  R.  R.  Co.  v.  New  York,  supra;  Lake  Shore  &  M.  S. 
Rwy.  Co.  v.  Ohio,  173  U.  S.  285 ;  Missouri  Pacific  Rwy.  Co.  v. 
Larabee  Mills,  211  U.  S.  612 ;  Missouri  Pacific  Rwy.  Co.  v.  Kan- 
sas, 216  U.  S.  262 ;  Chicago,  R.  I.  &  Pacific  Rwy.  Co.  v.  Arkansas, 
219  U.  S.  453;  Minnesota  Rate  Cases,  230  U.  S.  352,  402,  410. 

If  there  is  a  conflict  in  such  local  regulations,  by  which  inter- 
state commerce  may  be  inconvenienced — if  there  appears  to  be 
need  of  standardization  of  safety  appliances  and  of  providing 
rules  of  operation  which  will  govern  the  entire  interstate  road 
irrespective  of  state  boundaries — there  is  a  simple  remedy ;  and 
it  cannot  be  assumed  that  it  will  not  be  readily  applied  if  there 
be  real  occasion  for  it.  That  remedy  does  not  rest  in  a  denial 
to  the  State,  in  the  absence  of  conflicting  Federal  action,  of  its 


PLUMLEY  v.  MASSACHUSETTS.  407 

power  to  protect  life  and  property  within  its  borders,  but  it  does 
lie  in  the  exercise  of  the  paramount  authority  of  Congress  in  its 
control  of  interstate  commerce  to  establish  such  regulations  as 
in  its  judgment  may  be  deemed  appropriate  and  sufficient.  Con- 
gress, when  it  pleases,  may  give  the  rule  and  make  the  standard 
to  be  observed  on  the  interstate  highway.  .  .  . 

The  judgment  is  affirmed.  Affirmed. 

NOTE. — As  to  regulations  for  the  preservation  of  safety  and  order,  see 
Wabash  Ry.  v.  Defiance  (1897),  167  U.  8.  88  (street  grades  at  railway 
crossings) ;  Laclede  Gas  Light  Co.  v.  Murphy  (1898),  170  U.  8.  78  (placing 
of  electric  light  wires);  Minnesota  Iron  Co.  v.  Kline  (1905),  199  U.  8.  593 
(abrogation  of  fellow-servant  rule  among  railway  employees) ;  Chicago,  Mil- 
waukee &  St.  Paul  By.  v.  Minneapolis  (1914),  232  U.  8.  430  (railway  to 
build  bridge  over  its  right  of  way  at  its  own  expense) ;  Plymouth  Coal  Co. 
T.  Pennsylvania  (1914),  232  U.  8.  531  (regulation  of  working  of  coal 
mines) ;  Atlantic  Coast  Line  Ry.  v.  Ooldsboro  (1914),  232  U.  8.  548  (ordi- 
nances regulating  operation  of  railway  trains  within  city  limits) ;  Hendrick 
v.  Maryland  (1915),  235  U.  8.  610  (regulation  of  motor  vehicles). 


SECTION  4.    THE  PROMOTION  OP  THE  GENERAL  WELFARE. 
PLUMLEY  v.  MASSACHUSETTS. 

SUPREME  COURT  or  THE  UNITED  STATES.    1894. 
155  U.  S.  461;  39  Lawyers'  Ed.  223. 

Error  to  the  Supreme  Judicial  Court  of  the  Commonwealth  of 
Massachusetts. 

[The  State  of  Massachusetts  enacted  a  law  entitled  "An  act 
to  prevent  deception  in  the  manufacture  and  sale  of  imitation 
butter,"  which  forbade  the  manufacture  or  sale  of  "any  article, 
product  or  compound  made  wholly  or  partly  out  of  any  fat.  oil 
or  oleaginous  substance  or  compound  thereof,  not  produced  from 
unadulterated  milk  or  cream  from  the  same,  which  shall  be  in 
imitation  of  yellow  butter  produced  from  pure  unadulterated 
milk  or  cream  of  the  same,"  but  "nothing  in  this  act  shall  ln> 
construed  to  prohibit  the  manufacture  or  sale  of  oleomargarine 
in  a  separate  and  distinct  form,  and  in  such  a  manner  as  will 
advise  the  consumer  of  its  real  character,  free  from  coloration 
or  ingredient  that  causes  it  to  look  like  butter."  The  plaintiff 
in  error  was  convicted  in  the  Municipal  Court  of  Boston  of  hav- 


408  CASES  ON  CONSTITUTIONAL  LAW. 

ing  sold  oleomargarine  colored  in  imitation  of  butter,  contrary 
to  the  provisions  of  the  statute  just  cited.  That  conviction  was 
sustained  by  the  Supreme  Judicial  Court  of  Massachusetts  (156 
Mass.  236).] 

MB.  JUSTICE  HARLAN  delivered  the  opinion  of  the  court.    .    .    . 

The  vital  question  in  this  case  is,  ...  whether,  as  con- 
tended by  the  petitioner,  the  statute  under  examination  in  its 
application  to  sales  of  oleomargarine  brought  into  Massachusetts 
from  other  States  is  in  conflict  with  the  clause  of  the  Constitu- 
tion of  the  United  States  investing  Congress  with  the  power  to 
regulate  commerce  among  the  several  States.  .  .  . 

It  will  be  observed  that  the  statute  of  Massachusetts  which  is 
alleged  to  be  repugnant  to  the  commerce  clause  of  the  Constitu- 
tion does  not  prohibit  the  manufacture  or  sale  of  all  oleomar- 
garine, but  only  such  as  is  colored  in  imitation  of  yellow  butter 
produced  from  pure  unadulterated  milk  or  cream  of  such  milk. 
If  free  from  coloration  or  ingredient  that  "causes  it  to  look  like 
butter,"  the  right  to  sell  it  "in  a  separate  and  distinct  form, 
and  in  such  manner  as  will  advise  the  consumer  of  its  real  char- 
acter," is  neither  restricted  nor  prohibited.  It  appears,  in  this 
case,  that  oleomargarine,  in  its  natural  condition,  is  of  "a  light 
yellowish  color,"  and  that  the  article  sold  by  the  accused  was 
artificially  colored  "in  imitation  of  yellow  butter."  Now,  the 
real  object  of  coloring  oleomargarine  so  as  to  make  it  look  like 
genuine  butter  is  that  it  may  appear  to  be  what  it  is  not,  and  thus 
induce  unwary  purchasers  wrho  do  not  closely  scrutinize  the  label 
upon  the  package  in  which  it  is  contained,  to  buy  it  as  and  for 
butter  produced  from  unadulterated  milk  or  cream  from  such 
milk.  The  suggestion  that  oleomargarine  is  artificially  colored 
so  as  to  render  it  more  palatable  and  attractive  can  only  mean 
that  customers  are  deluded,  by  such  coloration,  into  believing 
that  they  are  getting  genuine  butter.  If  any  one  thinks  that 
oleomargarine,  not  artificially  colored  so  as  to  cause  it  to  look 
like  butter,  is  as  palatable  or  as  wholesome  for  purposes  of  food 
as  pure  butter,  he  is,  as  already  observed,  at  liberty  under  the 
statute  of  Massachusetts  to  manufacture  it  in  that  State  or  to 
sell  it  there  in  such  a  manner  as  to  inform  the  customer  of  its 
real  character.  He  is  only  forbidden  to  practice,  in  such  mat- 
ters, a  fraud  upon  the  general  public.  The  statute  seeks  to  sup- 
press false  pretenses  and  to  promote  fair  dealing  in  the  sale  of 
an  article  of  food.  It  compels  the  sale  of  oleomargarine  for  what 
it  really  is,  by  preventing  its  sale  for  what  it  is  not.  Can  it  be 


PLUMLEY  v.  MASSACHUSETTS.  409 

that  the  Constitution  of  the  United  States  secures  to  any  one  the 
privilege  of  manufacturing  an  article  of  food  in  such  a  manner 
as  to  induce  the  mass  of  people  to  believe  that  they  are  buying 
something  which,  in  fact,  is  wholly  different  from  that  which  is 
offered  for  sale?  Does  the  freedom  of  commerce  among  the 
States  demand  a  recognition  of  the  right  to  practice  a  deception 
upon  the  public  in  the  sale  of  any  articles,  even  those  that  may 
have  become  the  subject  of  trade  in  different  parts  of  the  country  T 

If  there  be  any  subject  over  which  it  would  seem  the  States 
ought  to  have  plenary  control,  and  the  power  to  legislate  in  re- 
spect to  which  it  ought  not  to  be  supposed  was  intended  to  be 
surrendered  to  the  general  government,  it  is  the  protection  of 
the  people  against  fraud  and  deception  in  the  sale  of  food  prod- 
ucts. Such  legislation  may,  indeed,  indirectly  or  incidentally 
affect  trade  in  such  products  transported  from  one  State  to 
another  State.  But  that  circumstance  does  not  show  that  laws 
of  the  character  alluded  to  are  inconsistent  with  the  power  of 
Congress  to  regulate  commerce  among  the  States.  For,  as  said 
by  this  court  in  Sherlock  v.  Ailing,  93  U.  S.  99,  103:  "In  con- 
ferring upon  Congress  the  regulation  of  commerce,  it  was  never 
intended  to  cut  the  States  off  from  legislating  on  all  subjects 
relating  to  the  health,  life,  and  safety  of  their  citizens,  though 
the  legislation  might  indirectly  affect  the  commerce  of  the  coun- 
try. Legislation,  in  a  great  variety  of  ways,  may  affect  commerce 
and  persons  engaged  in  it  without  constituting  a  regulation  of 
it  within  the  meaning  of  the  Constitution."  .  .  . 

But  the  case  most  relied  on  by  the  petitioner  to  support  the 
proposition  that  oleomargarine,  being  a  recognized  article  of 
commerce,  may  be  introduced  into  a  State  and  there  sold  in 
original  packages,  without  any  restriction  being  imposed  by  the 
State  upon  such  sale,  is  Leisy  v.  Hardin,  135  U.  S.  100.  .  .  . 

It  is  sufficient  to  say  of  Leisy  v.  Hardin  that  it  did  not  in  form 
or  in  substance  present  the  particular  question  now  under  con- 
sideration. The  article  which  the  majority  of  the  court  in  that 
case  held  could  be  sold  in  Iowa  in  original  packages,  the  statute 
of  the  State  to  the  contrary  notwithstanding,  was  beer  manu- 
factured in  Illinois  and  shipped  to  the  former  State  to  be  there 
sold  in  such  packages.  So  far  as  the  record  disclosed,  and  so 
far  as  the  contentions  of  the  parties  were  concerned,  the  article 
there  in  question  was  what  it  appeared  to  be,  namely,  genuine 
beer,  and  not  a  liquid  or  drink  colored  artificially  so  as  to  cause 
it  to  look  like  beer. 


410  CASES  ON  CONSTITUTIONAL  LAW. 

We  are  of  opinion  that  it  is  within  the  power  of  a  State  to 
exclude  from  its  markets  any  compound  manufactured  in  an- 
other State,  which  has  been  artificially  colored  or  adulterated 
so  as  to  cause  it  to  look  like  an  article  of  food  in  general  use,  and 
the  sale  of  which  may,  by  reason  of  such  coloration  or  adultera- 
tion, cheat  the  general  public  into  purchasing  that  which  they 
may  not  intend  to  buy.  The  Constitution  of  the  United  States 
does  not  secure  to  any  one  the  privilege  of  defrauding  the  public. 
The  deception  against  which  the  statute  of  Massachusetts  is 
aimed  is  an  offense  against  society;  and  the  States  are  as  com- 
petent to  protect  their  people  against  such  offenses  or  wrongs  as 
they  are  to  protect  them  against  crimes  or  wrongs  of  more  seri- 
ous character.  And  this  protection  may  be  given  without  vio- 
lating any  right  secured  by  the  national  Constitution,  and  with- 
out infringing  the  authority  of  the  general  government.  A 
State  enactment  forbidding  the  sale  of  deceitful  imitations  of 
articles  of  food  in  general  use  among  the  people  does  not  abridge 
any  privilege  secured  to  citizens  of  the  United  States,  nor,  in 
any  just  sense,  interfere  with  the  freedom  of  commerce  among 
the  several  States.  It  is  legislation  which  "can  be  most  advan- 
tageously exercised  by  the  States  themselves."  Gibbons  v.  Og- 
den,  Wheat.  1,  203.  .  .  .  Judgment  affirmed. 

MR.  JUSTICE  FULLER,  with  whom  concurred  MR.  JUSTICE  FIELD 
and  MR.  JUSTICE  BREWER,  dissenting.  .  .  . 


SLIGH  v.  KIRKWOOD,  SHERIFF  OF  ORANGE  COUNTY, 

FLORIDA. 

SUPREME  COURT  OF  THE  UNITED  STATES.    1915. 
237  U.  S.  52;  59  Lawyers'  Ed.  — . 

Error  to  the  Supreme  Court  of  the  State  of  Florida. 

MR.  JUSTICE  DAY  delivered  the  opinion  of  the  court. 

A  statute  of  the  State  of  Florida  undertakes  to  make  it  unlaw- 
ful for  anyone  to  sell,  offer  for  sale,  ship,  or  deliver  for  ship- 
ment, any  citrus  fruits  which  are  immature  or  otherwise  unfit 
for  consumption. 

Plaintiff  in  error,  S.  J.  Sligh,  was  charged  by  information 
containing  three  counts  in  the  Criminal  Court  of  Record  in 
Orange  County,  Florida,  with  violation  of  this  statute.  One 


SL1GII  v.  KI  UK  WOOD.  411 

of  the  counts  charged  that  Sligh  delivered  to  an  agent  of  the 
Seaboard  Air  Line  Railway  Company,  a  common  carrier,  for 
shipment  to  Winecoff  &  Adams,  Birmingham,  Alabama,  one  car 
of  oranges,  which  were  citrus  fruits,  then  and  there  immature 
and  unfit  for  consumption.  .  .  . 

The  single  question  is:  Was  it  within  the  authority  of  the 
State  of  Florida  to  make  it  a  criminal  offense  to  deliver  for  ship- 
ment in  interstate  commerce  citrus  fruits,— oranges  in  this  case, 
— then  and  there  immature  and  unfit  for  consumption  f 

It  will  be  observed  that  the  oranges  must  not  only  be  imma- 
ture, but  they  must  be  in  such  condition  as  renders  them  unfit 
for  consumption ;  that  is,  giving  the  words  their  ordinary  signi- 
fication, unfit  to  be  used  for  food.  Of  course,  fruits  of  this  char- 
acter, in  that  condition,  may  be  deleterious  to  the  public  health, 
and,  in  the  public  interest,  it  may  be  highly  desirable  to  pre- 
vent their  shipment  and  sale.  Not  disputing  this,  the  contention 
of  the  plaintiff  in  error  is  that  the  statute  contravenes  the  Fed- 
eral Constitution  in  that  the  legislature  has  undertaken  to  pass 
a  law  beyond  the  power  of  the  State,  because  of  the  exclusive 
control  of  Congress  over  commerce  among  the  States,  under  the 
Federal  Constitution. 

That  Congress  has  the  exclusive  power  to  regulate  interstate 
commerce  is  beyond  question.  .  .  . 

While  this  proposition  seems  to  be  conceded,  and  the  com- 
petency of  the  State  to  provide  local  measures  in  the  interest  of 
the  safety  and  welfare  of  the  people  is  not  doubted,  although 
such  regulations  incidentally  and  indirectly  involve  interstate 
commerce,  the  contention  is  that  this  statute  is  not  a  legitimate 
exercise  of  the  police  power,  as  it  has  the  effect  to  protect  the 
health  of  people  in  other  States  who  may  receive  the  fruits  from 
Florida  in  a  condition  unfit  for  consumption ;  and  however  com- 
mendable it  may  be  to  protect  the  health  of  such  foreign  peoples, 
such  purpose  is  not  within  the  police  power  of  the  State. 

The  limitations  upon  the  police  power  are  hard  to  define,  and 
its  far-reaching  scope  has  been  recognized  in  many  decisions  of 
this  court.  At  an  early  day  it  was  held  to  embrace  every  law  or 
statute  which  concerns  the  whole  or  any  part  of  the  people, 
whether  it  related  to  their  rights  or  duties,  whether  it  respected 
them  as  men  or  citizens  of  the  State,  whether  in  their  public  or 
private  relations,  whether  it  related  to  the  rights  of  persons  or 
property  of  the  public  or  any  individual  within  the  State.  New 
York  v.  Miln,  11  Pet.  102, 139.  The  police  power,  in  its  broadest 
sense,  includes  all  legislation  and  almost  every  function  of  civil 


412  CASES  ON  CONSTITUTIONAL  LAW. 

government.  Barbier  v.  Connolly,  113  U.  S.  27.  It  is  not  sub- 
ject to  definite  limitations,  but  is  co-extensive  with  the  necessi- 
ties of  the  case  and  the  safeguards  of  public  interest.  Camfield 
v.  United  States,  167  U.  S.  518,  524.  It  embraces  regulations  de- 
signed to  promote  public  convenience  or  the  general  prosperity 
or  welfare,  as  well  as  those  specifically  intended  to  promote  the 
public  safety  or  the  public  health.  Chicago  etc.,  Railway  v. 
Drainage  Commissioners,  200  U.  S.  561,  592.  In  one  of  the 
latest  utterances  of  this  court  upon  the  subject,  it  was  said: 
"Whether  it  is  a  valid  exercise  of  the  police  power  is  a  ques- 
tion in  the  case,  and  that  power  we  have  defined,  as  far  as  it  is 
capable  of  being  defined  by  general  words,  a  number  of  times. 
It  is  not  susceptible  of  circumstantial  precision.  It  extends,  we 
have  said,  not  only  to  regulations  which  promote  the  public 
health,  morals,  and  safety,  but  to  those  which  promote  the  pub- 
lic convenience  or  the  general  prosperity.  .  .  .  And  further, 
'It  is  the  most  essential  of  powers,  at  times  the  most  insistent, 
and  always  one  of  the  least  limitable  of  the  powers  of  govern- 
ment.' "  Eubank  v.  Richmond,  226  U.  S.  137,  142. 

The  power  of  the  State  to  prescribe  regulations  which  shall 
prevent  the  production  within  its  borders  of  impure  foods,  un- 
fit for  use,  and  such  articles  as  would  spread  disease  and  pesti- 
lence, is  well  established.  .  .  . 

Nor  does  it  make  any  difference  that  such  regulations  inci- 
dentally affect  interstate  commerce,  when  the  object  of  the  regu- 
lation is  not  to  that  end,  but  is  a  legitimate  attempt  to  protect 
the  people  of  the  State.  .  .  . 

Furthermore,  this  regulation  cannot  be  declared  invalid  if 
within  the  range  of  the  police  power,  unless  it  can  be  said  that  it 
has  no  reasonable  relation  to  a  legitimate  purpose  to  be  ac- 
complished in  its  enactment;  and  whether  such  regulation  is 
necessary  in  the  public  interest  is  primarily  within  the  deter- 
mination of  the  legislature,  assuming  the  subject  to  be  a  proper 
matter  of  state  regulation. 

We  may  take  judicial  notice  of  the  fact  that  the  raising  of 
citrus  fruits  is  one  of  the  great  industries  of  the  State  of  Florida. 
It  was  competent  for  the  legislature  to  find  that  it  was  essential 
for  the  success  of  that  industry  that  its  reputation  be  preserved 
in  other  States  wherein  such  fruits  find  their  most  extensive 
market.  The  shipment  of  fruits,  so  immature  as  to  be  unfit  for 
consumption,  and  consequently  injurious  to  the  health  of  the 
purchaser,  would  not  be  otherwise  than  a  serious  injury  to  the 
local  trade,  and  would  certainly  affect  the  successful  conduct  of 


MUNN  v.  ILLINOIS.  413 

such  business  within  the  State.  The  protection  of  the  State's 
reputation  in  foreign  markets,  with  the  consequent  beneficial 
effect  upon  a  great  home  industry,  may  have  been  within  the 
legislative  intent  and  it  certainly  could  not  be  said  that  this 
legislation  has  no  reasonable  relation  to  the  accomplishment  of 
that  purpose.  .  .  . 

We  find  no  error  in  the  judgment  of  the  Supreme  Court  of 
Florida,  and  it  is  Affirmed. 

NOTE. — For  police  regulations  for  the  promotion  of  the  public  conven- 
ience or  general  welfare,  see  Dent  v.  West  Virginia  (1889),  129  U.  8.  114 
(requiring  licenses  for  physicians);  Miller  v.  Texas  (1894),  153  U.  S.  535 
(regulating  the  carrying  of  concealed  weapons) ;  Davis  v.  Massachusetts 
(1897),  167  U.  8.  43  (requiring  a  license  to  speak  in  a  public  place) ;  Wil- 
son T.  Eureka  City  (1899),  173  U.  8.  32  (regulating  the  moving  of  build- 
ings on  public  streets) ;  Lake  Shore  &  Michigan  Southern  By.  T.  Ohio 
(1899),  173  U.  8.  285  (requiring  three  trains  per  day  to  stop  at  certain 
stations) ;  Ohio  Oil  Co.  v.  Indiana  (1900),  177  U.  8.  190  (prohibiting  waste 
of  natural  gas) ;  Chicago,  Burlington  &  Quincy  By.  v.  Drainage  Commis- 
sioners (1906),  200  U.  8.  561  (removal  of  railway  bridges  in  order  to  per- 
mit drainage  of  land);  Bacon  v.  Walker  (1907),  204  U.  8.  311  (regulating 
the  grazing  of  public  lands) ;  Western  Turf  Association  v.  Greenberger 
(1907),  204  U.  8.  359  (admission  of  ticket-holders  to  public  places  of 
amusement)  ;  McLean  v.  Arkansas  (1909),  211  U.  8.  539  (method  of  payment 
of  coal-miners);  Welch  v.  Swasey  (1909),  214  U.  S.  91  (restricting  height 
of  buildings);  Griffith  v.  Connecticut  (1910),  218  U.  8.  563  (loans  at  in- 
teract of  more  than  15  per  cent) ;  Noble  State  Bank  v.  Haskell  (1911),  219 
U.  8.  104  (creation  of  fund  for  guaranty  of  bank  deposits) ;  Chicago,  Bur- 
lington ft  Quincy  By.  v.  McGuire  (1911),  219  U.  8.  549  (contracts  by  em- 
ployees limiting  liability  for  injuries  in  contravention  of  statute  governing 
such  liability) ;  Fifth  Avenue  Coach  Co.  v.  New  York  (1911),  221  U.  8.  467 
(regulation  of  advertising  on  street  vehicles) ;  Mutual  Loan  Co.  v.  Martell 
(li' 11),  222  U.  8.  225  (regulating  assignments  of  wages);  Erie  By.  T. 
Williams  (1914),  233  U.  8.  685  (semi-monthly  payment  of  employees  in 
certain  industries)  ;  Mutual  Film  Corporation  T.  Industrial  Commission  of 
Ohio  (1915),  236  U.  8.  230  (censorship  of  moving  picture  films) ;  Chicago  ft 
Alton  Ry.  v.  Tranbarger  (1915),  238  U.  8.  67  (railroads  required  to  main* 
tain  outlets  for  water  across  their  rights  of  way). 


SECTION  5.    THE  REGULATION  OP  PUBLIC  CALLINGS. 

MUNN  v.  ILLINOIS. 

SUPREME  COO»T  or  THE  UNITED  STATES.    1876. 
94  U.  8.  113;  24  Lawyers'  Ed.  77. 

Error  to  the  Supreme  Court  of  the  State  of  Illinois.    .    .    . 

MB.  CHIEF  JUSTICE  WAITE  delivered  the  opinion  of  the  court. 
The  question  to  be  determined  in  this  case  is  whether  the  gen- 


414  CASES  ON  CONSTITUTIONAL  LAW. 

eral  assembly  of  Illinois  can,  under  the  limitations  upon  the  legis- 
lative powers  of  the  States  imposed  by  the  Constitution  of  the 
United  States,  fix  by  law  the  maximum  of  charges  for  the  storage 
of  grain  in  warehouses  at  Chicago  and  other  places  in  the  State 
having  not  less  than  one  hundred  thousand  inhabitants,  "in 
which  grain  is  stored  in  bulk,  and  in  which  the  grain  of  different 
owners  is  mixed  together,  or  in  which  grain  is  stored  in  such  a 
manner  that  the  identity  of  different  lots  or  parcels  cannot  be 
accurately  preserved. ' ' 

It  is  claimed  that  such  a  law  is  repugnant — 

1.  To  that  part  of  sect.  8,  art.  I,  of  the  Constitution  of  the 
United  States  which  confers  upon  Congress  the  power  "to  regu- 
late  commerce   with   foreign   nations   and   among   the   several 
States;" 

2.  To  that  part  of  sect.  9  of  the  same  article,  which  provides 
that ' '  no  preference  shall  be  given  by  any  regulation  of  commerce 
or  revenue  to  the  ports  of  one  State  over  those  of  another ; ' '  and 

3.  To  that  part  of  amendment  14  which  ordains  that  no  State 
shall  "deprive  any  person  of  life,  liberty,  or  property,  without 
due  process  of  law,  nor  deny  to  any  person  within  its  jurisdiction 
the  equal  protection  of  the  laws." 

We  will  consider  the  last  of  these  objections  first.     .     .     . 

The  Constitution  contains  no  definition  of  the  word  "deprive," 
as  used  in  the  Fourteenth  Amendment.  To  determine  its  signifi- 
cation, therefore,  it  is  necessary  to  ascertain  the  effect  which 
usage  has  given  it,  when  employed  in  the  same  or  a  like  con- 
nection. 

While  this  provision  of  the  amendment  is  new  in  the  Constitu- 
tion of  the  United  States,  as  a  limitation  upon  the  powers  of  the 
States,  it  is  old  as  a  principle  of  civilized  government.  It  is 
found  in  Magna  Charta,  and,  in  substance  if  not  in  form,  in 
nearly  or  quite  all  the  constitutions  that  have  been  from  time  to 
time  adopted  by  the  several  States  of  the  Union.  By  the  Fifth 
Amendment,  it  was  introduced  into  the  Constitution  of  the 
United  States  as  a  limitation  upon  the  powers  of  the  national 
government,  and  by  the  Fourteenth,  as  a  guaranty  against  any 
encroachments  upon  an  acknowledged  right  of  citizenship  by 
the  legislatures  of  the  States. 

When  the  people  of  the  United  Colonies  separated  from  Great 
Britain,  they  changed  the  form,  but  not  the  substance,  of  their 
government.  They  retained  for  the  purposes  of  government  all 
the  powers  of  the  British  Parliament,  and  through  their  State 
constitutions,  or  other  forms  of  social  compact,  undertook  to  give 


Ml'NN  v.  ILLINOIS.  415 

practical  effect  to  such  as  they  deemed  necessary  for  the  common 
good  and  the  security  of  life  and  property.  All  the  powers  which 
tvtainrd  they  committed  to  their  respective  States,  unless  in 
express  terms  or  by  implications  reserved  to  themselves.  Subse- 
quently, when  it  was  found  necessary  to  establish  a  national 
government  for  national  purposes,  a  part  of  the  powers  of  the 
States  and  of  the  people  of  the  States  was  granted  to  the  United 
States  and  the  people  of  the  United  States.  This  grant  operated 
as  a  further  limitation  upon  the  powers  of  the  States,  so  that  now 
the  governments  of  the  States  possess  all  the  powers  of  the  Parlia- 
ment of  England,  except  such  as  have  been  delegated  to  the 
t'nited  States  or  reserved  by  the  people.  The  reservations  by 
the  people  are  shown  in  the  prohibitions  of  the  constitutions. 

When  one  becomes  a  member  of  society,  he  necessarily  parts 
with  some  rights  or  privileges  which,  as  an  individual  not 
affected  by  his  relations  to  others,  he  might  retain.  "A  body 
politic, ' '  as  aptly  defined  in  the  preamble  of  the  Constitution  of 
Massachusetts,  "is  a  social  compact  by  which  the  whole  people 
covenants  with  each  citizen,  and  each  citizen  with  the  whole  peo- 
ple, that  all  shall  be  governed  by  certain  laws  for  the  common 
good."  This  does  not  confer  power  upon  the  whole  people  to 
control  rights  which  are  purely  and  exclusively  private,  Thorpe 
v.  R.  &  V.  Railroad  Co.,  27  Vt.  143 ;  but  it  does  authorize  the  es- 
tablishment of  laws  requiring  each  citizen  to  so  conduct  himself, 
and  so  use  his  own  property,  as  not  unnecessarily  to  injure  an- 
other. This  is  the  very  essence  of  government,  and  has  found 
expression  in  the  maxim,  sic  utere  tuo  ut  alien um  non  laedas. 
From  this  source  come  the  police  powers,  which,  as  was  said  by  Mr. 
Chief  Justice  Taney  in  the  License  Cases,  5  How.  583,  "are  noth- 
ing more  or  less  than  the  powers  of  government  inherent  in  every 
sovereignty,  .  .  .  that  is  to  say,  .  .  .  the  power  to  gov- 
ern men  and  things."  Under  these  powers  the  government  regu- 
lates the  conduct  of  its  citizens  one  towards  another,  and  the 
manner  in  which  each  shall  use  his  own  property,  when  such 
regulation  becomes  necessary  for  the  public  good.  In  their  exer- 
cise it  has  been  customary  in  England  from  time  immemorial, 
and  in  this  country  from  its  first  colonization,  to  regulate  fer- 
ries, common  carriers,  hackmen,  bakers,  millers,  wharfingers,  inn- 
keepers, &c.,  and  in  so  doing  to  fix  a  maximum  of  charge  to  be 
made  for  services  rendered,  accommodations  furnished,  and  arti- 
cles sold.  To  this  day,  statutes  are  to  be  found  in  many  of  the 
States  upon  some  or  all  these  subjects;  and  we  think  it  has  n»  \.  r 
yet  been  successfully  contended  that  such  legislation  came  within 


416  CASES  ON  CONSTITUTIONAL  LAW. 

any  of  the  constitutional  prohibitions  against  interference  with 
private  property.  With  'the  Fifth  Amendment  in  force,  Congress 
in  1820,  conferred  power  upon  the  city  of  Washington  "to  regu- 
late .  .  .  the  rates  of  wharfage  at  private  wharves,  .  .  . 
the  sweeping  of  chimneys,  and  to  fix  the  rates  of  fees  therefor, 
.  .  .  and  the  weight  and  quality  of  bread,"  3  Stat.  587,  sect. 
7;  and,  in  1848,  "to  make  all  necessary  regulations  respecting 
hackney  carriages  and  the  rates  of  fare  of  the  same,  and  the  rates 
of  hauling  by  cartmen,  wagoners,  carmen,  and  draymen,  and  the 
rates  of  commission  of  auctioneers, "  9  id.  224,  sect.  2. 

From  this  it  is  apparent  that,  down  to  the  time  of  the  adop- 
tion of  the  Fourteenth  Amendment,  it  was  not  supposed  that 
statutes  regulating  the  use,  or  even  the  price  of  the  use,  of  pri- 
vate property  necessarily  deprived  an  owner  of  his  property 
without  due  process  of  law.  Under  some  circumstances  they  may, 
but  not  under  all.  The  amendment  does  not  change  the  law  in 
this  particular:  it  simply  prevents  the  States  from  doing  that 
which  will  operate  as  such  a  deprivation. 

This  brings  us  to  inquire  as  to  the  principles  upon  which  this 
power  of  regulation  rests,  in  order  that  we  may  determine  what 
is  within  and  what  is  without  its  operative  effect.  Looking,  then, 
to  the  common  law,  from  whence  came  the  right  which  the  Con- 
stitution protects,  we  find  that  when  private  property  is  ' '  affected 
with  a  public  interest,  it  ceases  to  be  juris  privati  only. ' '  This 
was  said  by  Lord  Chief  Justice  Hale  more  than  two  hundred 
years  ago,  in  his  treatise  De  Portibus  Maris,  1  Harg.  Law  Tracts, 
78,  and  has  been  accepted  without  objection  as  an  essential  ele- 
ment in  the  law  of  property  ever  since.  Property  does  become 
clothed  with  a  public  interest  when  used  in  a  manner  to  make  it 
of  public  consequence,  and  affect  the  community  at  large.  When, 
therefore,  one  devotes  his  property  to  a  use  in  which  the  public 
has  an  interest,  he,  in  effect,  grants  to  the  public  an  interest  in 
that  use,  and  must  submit  to  be  controlled  by  the  public  for  the 
common  good,  to  the  extent  of  the  interest  he  has  thus  created. 
He  may  withdraw  his  grant  by  discontinuing  the  use;  but,  so 
long  as  he  maintains  the  use,  he  must  submit  to  the  control. 

From  the  same  source  comes  the  power  to  regulate  the  charges 
of  common  carriers,  which  was  done  in  England  as  long  ago 
as  the  third  year  of  the  reign  of  William  and  Mary,  and  con- 
tinued until  within  a  comparatively  recent  period.  And  in  the 
first  statute  we  find  the  following  suggestive  preamble,  to  wit : — 

"And  whereas  divers  wagoners  and  other  carriers,  by  com- 


MUNN  v.  ILLINOIS.  417 

bination  amongst  themselves,  have  raised  the  prices  of  carriage 
of  goods  in  many  places  to  excessive  rates,  to  the  great  injury  of 
the  trade:  Be  it,  therefore,  enacted,"  &c.  3  W.  &  M.  c.  12, 
§  24;  3  Stat.  at  Large  (Great  Britain),  481. 

Common  carriers  exercise  a  sort  of  public  office,  and  have  duties 
to  perform  in  which  the  public  is  interested.  New  Jersey  Nav. 
Co.  v.  Merchants'  Bank,  6  How.  382.  Their  business  is,  there- 
fore, "affected  with  a  public  interest,"  within  the  meaning  of 
the  doctrine  which  Lord  Hale  has  so  forciby  stated. 

But  we  need  not  go  further.  Enough  has  already  been  said  to 
show  that,  when  private  property  is  devoted  to  a  public  use,  it  is 
subject  to  public  regulation.  It  remains  only  to  ascertain  whether 
the  warehouses  of  these  plaintiffs  in  error,  and  the  business  which 
is  carried  on  there,  come  within  the  operation  of  this  principle. 

For  this  purpose  we  accept  as  true  the  statements  of  fact  con- 
tained in  the  elaborate  brief  of  one  of  the  counsel  of  the  plaintiffs 
in  error.  From  these  it  appears  that ' '  the  great  producing  region 
of  the  West  and  North-west  sends  its  grain  by  water  and  rail  to 
Chicago,  where  the  greater  part  of  it  is  shipped  by  vessel  for 
transportation  to  the  seaboard  by  the  Great  Lakes,  and  some  of 
it  is  forwarded  by  railway  to  the  Eastern  ports.  .  .  .  Ves- 
sels, to  some  extent,  are  loaded  in  the  Chicago  harbor,  and  sailed 
through  the  St.  Lawrence  directly  to  Europe.  .  .  .  The 
quantity  [of  grain]  received  in  Chicago  has  made  it  the  greatest 
grain  market  in  the  world.  This  business  has  created  a  demand 
for  means  by  which  the  immense  quantity  of  grain  can  be  han- 
dled or  stored,  and  these  have  been  found  in  grain  warehouses, 
which  are  commonly  called  elevators,  because  the  grain  is  ele- 
vated from  the  boat  or  car,  by  machinery  operated  by  steam, 
into  the  bins  prepared  for  its  reception,  and  elevated  from  the 
bins,  by  a  like  process,  into  the  vessel  or  car  which  is  to  carry 
it  on.  ...  In  this  way  the  trade  in  grain  is  carried  on  by 
the  inhabitants  of  seven  or  eight  of  the  great  States  of  the  West 
with  four  or  five  of  the  States  lying  on  the  sea-shore,  and  forms 
the  largest  part  of  interstate  commerce  in  these  States.  The  grain 
warehouses  or  elevators  in  Chicago  are  immense  structures,  hold- 
ing from  300,000  to  1,000,000  bushels  at  one  time,  according  to 
size.  They  are  divided  into  bins  of  large  capacity  and  great 
strength.  .  .  .  They  are  located  with  the  river  harbor  on 
one  side  and  the  railway  tracks  on  the  other;  and  the  grain  is 
run  through  them  from  car  to  vessel,  or  boat  to  car,  as  may  be 
demanded  in  the  course  of  business.  It  has  been  found  impossi- 
ble to  preserve  each  owner's  grain  separate,  and  this  has  given 
B.C.L.— n 


418  CASES  ON  CONSTITUTIONAL  LAW. 

rise  to  a  system  of  inspection  and  grading,  by  which  the  grain 
of  different  owners  is  mixed,  and  receipts  issued  for  the  number 
of  bushels  which  are  negotiable,  and  redeemable  in  like  kind, 
upon  demand.  This  mode  of  conducting  the  business  was  inaug- 
urated more  than  twenty  years,  ago,  and  has  grown  to  immense 
proportions.  The  railways  have  found  it  impracticable  to  own 
such  elevators,  and  public  policy  forbids  the  transaction  of 
such  business  by  the  carrier;  the  ownership  has,  therefore,  been 
by  private  individuals,  who  have  embarked  their  capital  and  de- 
voted their  industry  to  such  business  as  a  private  pursuit." 

In  this  connection  it  must  also  be  borne  in  mind  that,  although 
in  1874  there  were  in  Chicago  fourteen  warehouses  adapted  to 
this  particular  business,  and  owned  by  about  thirty  persons,  nine 
business  firms  controlled  them,  and  that  the  prices  charged  and 
received  for  storage  were  such  "as  have  been  from  year  to  year 
agreed  upon  and  established  by  the  different  elevators  or  ware- 
houses in  the  city  of  Chicago,  and  which  rates  have  been  annually 
published  in  one  or  more  newspapers  printed  in  said  city,  in  the 
month  of  January  in  each  year,  as  the  established  rates  for  the 
year  then  next  ensuing  such  publication."  Thus  it  is  apparent 
that  all  the  elevating  facilities  through  which  these  vast  produc- 
tions "of  seven  or  eight  great  States  of  the  West"  must  pass  on 
the  way  ' '  to  four  or  five  of  the  States  on  the  sea-shore ' '  may  be 
a  "virtual"  monopoly. 

Under  such  circumstances  it  is  difficult  to  see  why,  if  the  com- 
mon carrier,  or  the  miller,  or  the  ferryman,  or  the  innkeeper,  or 
the  wharfinger,  or  the  baker,  or  the  cartman,  or  the  hackney- 
coachman,  pursues  a  public  employment  and  exercises  "a  sort  of 
public  office, ' '  these  plaintiffs  in  error  do  not.  They  stand,  to  use 
again  the  language  of  their  counsel,  in  the  very  "gateway  of 
commerce,"  and  take  toll  from  all  who  pass.  Their  business 
most  certainly  "tends  to  a  common  charge,  and  is  become  a 
thing  of  public  interest  and  use."  Every  bushel  of  grain  for 
its  passage  ' '  pays  a  toll,  which  is  a  common  charge, ' '  and,  there- 
fore, according  to  Lord  Hale,  every  such  warehouseman  "ought 
to  be  under  public  regulation,  viz.,  that  he  ...  take  but 
reasonable  toll."  Certainly,  if  any  business  can  be  clothed 
"with  a  public  interest  and  cease  to  be  juris  privati  only,"  this 
has  been.  It  may  not  be  made  so  by  the  operation  of  the  Consti- 
tution of  Illinois  or  this  statute,  but  it  is  by  the  facts. 

We  also  are  not  permitted  to  overlook  the  fact  that,  for  some 
reason,  the  people  of  Illinois,  when  they  revised  their  Constitu- 
tion in  1870,  saw  fit  to  make  it  the  duty  of  the  general  assembly 


MUNN  v.  ILLINOIS.  419 

to  pass  laws  "for  the  protection  of  producers,  shippers,  and  re- 
ceivers of  grain  and  produce,"  art.  13,  sect.  7;  and  by  sect.  5  of 
the  same  article,  to  require  all  railroad  companies  receiving  and 
transporting  grain  in  bulk  or  otherwise  to  deliver  the  same  at 
any  elevator  to  which  it  might  be  consigned,  that  could  be 
reached  by  any  track  that  was  or  could  be  used  by  such  company, 
and  that  all  railroad  companies  should  permit  connections  to  be 
made  with  their  tracks,  so  that  any  public  warehouse,  &c.,  might 
be  reached  by  the  cars  on  their  railroads.  This  indicates  very 
clearly  that  during  the  twenty  years  in  which  this  peculiar  busi- 
ness had  been  assuming  its  present ' '  immense  proportions, ' '  some- 
thing had  occurred  which  led  the  whole  body  of  the  people  to 
suppose  that  remedies  such  as  are  usually  employed  to  prevent 
abuses  by  virtual  monopolies  might  not  be  inappropriate  here. 

Neither  is  it  a  matter  of  any  moment  that  no  precedent  can 
be  found  for  a  statute  precisely  like  this.  It  is  conceded  that  the 
business  is  one  of  recent  origin,  that  its  growth  has  been  rapid, 
and  that  it  is  already  of  great  importance.  And  it  must  also  be 
conceded  that  it  is  a  business  in  which  the  whole  public  has  a 
direct  and  positive  interest.  It  presents,  therefore,  a  case  for  the 
application  of  a  long-known  and  well-established  principle  in 
social  science,  and  this  statute  simply  extends  the  law  so  as  to 
meet  this  new  development  of  commercial  progress.  There  is  no 
attempt  to  compel  these  owners  to  grant  the  public  an  interest  in 
their  property,  but  to  declare  their  obligations,  if  they  use  it 
in  this  particular  manner. 

It  matters  not  in  this  case  that  these  plaintiffs  in  error  had 
built  their  warehouses  and  established  their  business  before  the 
regulations  complained  of  were  adopted.  What  they  did  was 
from  the  beginning  subject  to  the  power  of  the  body  politic  to 
require  them  to  conform  to  such  regulations  as  might  be  estab- 
lished by  the  proper  authorities  for  the  common  good.  They 
entered  upon  their  business  and  provided  themselves  with  the 
means  to  carry  it  on  subject  to  this  condition.  If  they  did  not 
wish  to  submit  themselves  to  such  interference,  they  should  not 
have  clothed  the  public  with  an  interest  in  their  concerns.  The 
same  principle  applies  to  them  that  does  to  the  proprietor  of  a 
hackney-carriage,  and  as  to  him  it  has  never  been  supposed  that 
he  was  exempt  from  regulating  statutes  or  ordinances  because 
he  had  purchased  his  horses  and  carriage  and  established  his 
business  before  the  statute  or  the  ordinance  was  adopted.  .  .  . 


420  CASES  ON  CONSTITUTIONAL  LAW. 

"We  come  now  to  consider  the  effect  upon  this  statute  of  the 
power  of  Congress  to  regulate  commerce. 

It  was  very  properly  said  in  the  case  of  the  State  Tax  on  Rail- 
way Gross  Receipts,  15  Wall.  293,  that  "it  is  not  everything  that 
affects  commerce  that  amounts  to  a  regulation  of  it,  within  the 
meaning  of  the  Constitution."  The  warehouses  of  these  plain- 
tiffs in  error  are  situated  and  their  business  carried  on  exclu- 
sively within  the  limits  of  the  State  of  Illinois.  They  are  used 
as  instruments  by  those  engaged  in  State  as  well  as  those  engaged 
in  interstate  commerce,  but  they  are  no  more  necessarily  a  part 
of  commerce  itself  than  the  dray  or  the  cart  by  which,  but  for 
them,  grain  would  be  transferred  from  one  railroad  station  to 
another.  Incidentally  they  may  become  connected  with  inter- 
state commerce,  but  not  necessarily  so.  Their  regulation  is  a 
thing  of  domestic  concern,  and,  certainly,  until  Congress  acts  in 
reference  to  their  interstate  relations,  the  State  may  exercise  all 
the  powers  of  government  over  them,  even  though  in  so  doing  it 
may  indirectly  operate  upon  commerce  outside  its  immediate 
jurisdiction.  We  do  not  say  that  a  case  may  not  arise  in  which 
it  will  be  found  that  a  State,  under  the  form  of  regulating  its 
own  affairs,  has  encroached  upon  the  exclusive  domain  of  Con- 
gress, in  respect  to  interstate  commerce,  but  we  do  say  that, 
upon  the  facts  as  they  are  represented  to  us  in  this  record,  that 
has  not  been  done.  .  .  .  Judgment  affirmed. 

MR.  JUSTICE  FIELD  and  MB.  JUSTICE  STRONG  dissented.    .    .    . 

NOTE. — The  doctrine  of  the  principal  case  was  re-examined  and  affirmed 
in  Budd  v.  New  York  (1892),  143  U.  S.  517,  and  was  given  an  even  wider 
application  in  Brass  v.  North  Dakota  (1894),  153  U.  S.  391.  As  to  what 
businesses  besides  those  mentioned  in  the  principal  case  are  affected  with 
a  public  interest,  see  Boone  County  v.  Patterson  (1878),  98  U.  8.  403  (log 
driving) ;  Spring  Valley  Water  Works  v.  Schottler  (1884),  110  U.  S.  347 
(water  works);  Express  Cases  (1886),  117  U.  S.  1  (express  companies); 
Sands  v.  Manistee  River  Improvement  Co.  (1887),  123  U.  S.  288  (river  im- 
provements) ;  Gibbs  v.  Consolidated  Gas  Co.  (1889),  130  U.  S.  396  (gas 
light  companies) ;  Covington  etc.  Turnpike  Eoad  Co.  v.  Sandford  (1896), 
164  U.  S.  578  (turn  pikes);  San  Diego  Land  Co.  v.  National  City/  (1899), 
174  U.  S.  739  (irrigation)  ;  Western  Union  Telegraph  Co.  v.  Call  Publishing 
Co.  (1901),  181  U.  S.  92  (telegraph  companies);  Getting  v.  Kansas  City 
Stockyards  Co.  (1901),  183  U.  S.  79  (stockyards);  Chesapeake  &  Potomac 
Telephone  Co.  v.  Manning  (1902),  186  U.  S.  238  (telephone  companies); 
Capital  City  Light  &  Fuel  Co.  v.  Tallahassee  (1902),  186  U.  S.  401  (electric 
light  companies);  Board  of  Trade  v.  Christie  Grain  &  Stock  Co.  (1905), 
198  U.  S.  236  (ticker  service  companies) ;  German  Alliance  Insurance  Co. 
v.  Lewis  (1914),  233  U.  S.  389  (fire  insurance)  ;  The  Pipe  Line  Cases  (1914), 
234  U.  S.  548  (pipe  lines)  ;  Searles  v.  Mann  Co.  (1891),  45  Fed.  330  (sleep- 


NORTHERN  PAC.  RY.  CO.  v.  NORTH  DAKOTA.    421 

ing  car  companies);  United  States  v.  Ormsbee  (1896),  74  Fed.  207  (canal 
companies);  Milwaukee  Electric  By.  v.  Milwaukee  (1898),  87  Fed.  577 
(street  railways) ;  Baillie  v.  Larson  (1905),  138  Fed.  177  (mining  tunnels) ; 
Walker  v.  Shasta  Power  Co.  (1908),  160  Fed.  856  (electric  power  transmis- 
sion line)  ;  Dalles  Lumbering  Co.  v.  Urquhart  (1888),  18  Oregon,  67  (lumber 
flumes);  State  v.  Edwards  (1893),  88  Maine,  102  (saw  mills);  State  v. 
Jacksonville  Terminal  Co.  (1899),  41  Fla.  363  (railway  terminal  com- 
panies) ;  Inter-Ocean  Publishing  Co.  v.  Associated  Press  (1900),  184  HI.  438 
(news  collecting  agency);  People  v.  Hartford  Life  Insurance  Co.  (1911), 
252  111.  398  (life  insurance  companies). 

The  whole  law  governing  business  affected  with  a  public  interest  is  fully 
and  admirably  treated  in  Wyman,  Public  Service  Corporations.  See  also  an 
able  article  by  C.  K.  Burdick,  on  "The  Origin  of  the  Peculiar  Duties  of 
Public  Service  Corporations"  in  Columbia  Law  Eevicw,  xi,  515,  616,  743. 


NORTHERN  PACIFIC   RAILWAY  COMPANY  v.  STATE 
OF  NORTH  DAKOTA. 

MINNEAPOLIS,  ST.  PAUL  &  SAULT  STE.  MARIE  RAIL- 
WAY COMPANY  v.  SAME. 

SUPREME  COURT  or  THE  UNITED  STATES.    1915. 
236  U.  8.  585;  59  Lawyers'  Ed.  — . 

Error  to  the  Supreme  Court  of  the  State  of  North  Dakota. 

[The  legislature  of  North  Dakota  in  1907  fixed  maximum 
intrastate  rates  graduated  according  to  distance  for  the  trans- 
portation of  coal  in  carload  lots.  In  practice  these  rates  applied 
almost  solely  to  lignite  coal.  By  judicial  proceedings  in  the 
courts  of  North  Dakota,  sustained  in  216  U.  S.  579,  the  carriers 
were  compelled  to  give  the  new  rates  a  trial.  In  the  fiscal  year 
ending  June  30,  1911,  the  total  revenue  received  by  the  Northern 
Pacific  Railway  on  the  intrastate  carriage  of  lignite  coal  was 
$58,953.07,  on  which  it  made  a  net  profit  of  $847,  while  the  same 
business  was  conducted  by  the  Minneapolis,  St.  Paul  &  Sault 
Ste.  Marie  Railway  at  an  actual  loss  of  from  $9,000  to  $12,000, 
even  when  no  allowance  was  made  to  it  for  interest  on  the  invest- 
ment in  its  property.  The  entire  intrastate  business  of  the  car- 
riers as  a  whole  produced  a  fair  return,  but  they  contended  that 
the 'act  by  which  they  were  compelled  to  carry  any  commodity 
for  less  than  a  reasonable  return  deprived  them  of  property 
without  due  process  of  law.] 


422  CASES  ON  CONSTITUTIONAL  LAW. 

MR.  JUSTICE  HUGHES  delivered  the  opinion  of  the  court.    .    .    . 

The  general  principles  to  be  applied  are  not  open  to  contro- 
versy. The  railroad  property  is  private  property  devoted  to  a 
public  use.  As  a  corporation,  the  owner  is  subject  to  the  obliga- 
tions of  its  charter.  As  the  holder  of  special  franchises,  it  is 
subject  to  the  conditions  upon  which  they  were  granted.  Aside 
from  specific  requirements  of  this  sort,  the  common  carrier  must 
discharge  the  obligations  which  inhere  in  the  nature  of  its  busi- 
ness. It  must  supply  facilities  that  are  reasonably  adequate; 
it  must  carry  upon  reasonable  terms,  and  it  must  serve  without 
unjust  discrimination.  These  duties  are  properly  called  public 
duties,  and  the  State  within  the  limits  of  its  jurisdiction  may 
enforce  them.  The  State  may  prescribe  rules  to  insure  fair 
remuneration  and  to  prevent  extortion,  to  secure  substantial 
equality  of  treatment  in  like  cases,  and  to  promote  safety,  good 
order  and  convenience. 

But,  broad  as  is  the  power  of  regulation,  the  State  does  not 
enjoy  the  freedom  of  an  owner.  The  fact  that  the  property  is 
devoted  to  a  public  use  on  certain  terms  does  not  justify  the 
requirement  that  it  shall  be  devoted  to  other  public  purposes,  or 
to  the  same  use  on  other  terms,  or  the  imposition  of  restrictions 
that  are  not  reasonably  concerned  with  the  proper  conduct  of 
the  business  according  to  the  undertaking  which  the  carrier  has 
expressly  or  impliedly  assumed.  If  it  has  held  itself  out  as  a 
carrier  of  passengers  only,  it  cannot  be  compelled  to  carry 
freight.  As  a  carrier  for  hire,  it  cannot  be  required  to  carry 
persons  or  goods  gratuitously.  The  case  would  not  be  altered 
by  the  assertion  that  the  public  interest  demanded  such  car- 
riage. The  public  interest  cannot  be  invoked  as  a  justification 
for  demands  which  pass  the  limits  of  reasonable  protection  and 
seek  to  impose  upon  the  carrier  and  its  property  burdens  that 
are  not  incident  to  its  engagement.  In  such  case,  it  would  be  no 
answer  to  say  that  the  carrier  obtains  from  its  entire  intrastate 
business  a  return  as  to  the  sufficiency  of  which  in  the  aggregate 
it  is  not  entitled  to  complain.  .  .  . 

We  have,  then,  to  apply  these  familiar  principles  to  a  case 
where  the  State  has  attempted  to  fix  a  rate  for  the  transporta- 
tion of  a  commodity  under  which,  taking  the  results  of  the  busi- 
ness to  which  the  rate  is  applied,  the  carrier  is  compelled  to 
transport  the  commodity  for  less  than  cost  or  without  substan- 
tial compensation  in  addition  to  cost.  We  say  this,  for  we  enter- 
tain no  doubt  that,  in  determining  the  cost  of  the  transportation 
of  a  particular  commodity,  all  the  outlays  which  pertain  to  it 


NORTHERN  PAC.  RY.  CO.  v.  NORTH  DAKOTA.    423 

must  be  considered.  \Ve  find  no  basis  for  distinguishing  in  this 
respect  between  so-called  "out-of-pocket  costs,"  or  "actual" 
expenses,  and  other  outlays  which  are  none  the  less  actually  made 
because  they  are  applicable  to  all  traffic,  instead  of  being  exclu- 
sively incurred  in  the  traffic  in  question.  Illustrations  are 
found  in  outlays  for  maintenance  of  way  and  structures,  general 
expenses  and  taxes.  It  is  not  a  sufficient  reason  for  excluding 
such,  or  other,  expenses  to  say  that  they  would  still  have  been 
incurred  had  the  particular  commodity  not  been  transported. 
That  commodity  has  been  transported;  the  common  carrier  is 
under  a  duty  to  carry,  and  the  expenses  of  its  business  at  a  par- 
ticular time  are  attributable  to  what  it  does  carry.  The  State 
cannot  estimate  the  cost  of  carrying  coal  by  throwing  the  expense 
incident  to  the  maintenance  of  the  roadbed,  and  the  general 
expenses,  upon  the  carriage  of  wheat;  or  the  cost  of  carrying 
wheat  by  throwing  the  burden  of  the  upkeep  of  the  property 
upon  coal  and  other  commodities.  This,  of  course,  does  not 
mean  that  all  commodities  are  to  be  treated  as  carried  at  the 
same  rate  of  expense.  The  outlays  that  exclusively  pertain  to  a 
given  class  of  traffic  must  be  assigned  to  that  class,  and  the 
other  expenses  must  be  fairly  apportioned.  It  may  be  difficult 
to  make  such  an  apportionment,  but  when  conclusions  are  based 
on  cost  the  entire  cost  must  be  taken  into  account. 

It  should  be  said,  further,  that  we  find  nothing  in  the  record 
before  us,  and  nothing  in  the  facts  which  have  been  set  forth  with 
the  most  careful  elaboration  by  the  state  court,  that  can  be  taken 
to  indicate  the  existence  of  any  standard  whatever  by  reference 
to  which  the  rate  in  question  may  be  considered  to  be  reasonable. 
It  does  not  appear  that  there  has  been  any  practice  of  the  car- 
riers in  North  Dakota  which  affords  any  semblance  of  support  to 
a  rate  so  low.  Whatever  inference  may  be  deduced  from  coal 
rates  in  other  States,  as  disclosed  by  the  record,  is  decidedly 
against  the  reasonableness  of  the  rate.  .  .  . 

The  State  insists  that  the  enactment  of  the  statute  may  be 
justified  as  "a  declaration  of  public  policy."  In  substance,  the 
argument  is  that  the  rate  was  imposed  to  aid  in  the  develop- 
ment of  a  local  industry  and  thus  to  confer  a  benefit  upon  the 
people  of  the  State.  The  importance  to  the  community  of  its 
deposits  of  lignite  coal,  the  infancy  of  the  industry,  and  the 
advantages  to  be  gained  by  increasing  the  consumption  of  this 
coal  and  making  the  community  less  dependent  upon  fuel  sup- 
plies imported  into  the  State,  are  emphasized.  But,  while  local 
interests  serve  as  a  motive  for  enforcing  reasonable  rates,  it 


424  CASES  ON  CONSTITUTIONAL  LAW. 

would  be  a  very  different  matter  to  say  tKat  the  State  may  com- 
pel the  carrier  to  maintain  a  rate  upon  a  particular  commodity 
that  is  less  than  reasonable,  or — as  might  equally  well  be 
asserted — to  carry  gratuitously,  in  order  to  build  up  a  local 
enterprise.  That  would  be  to  go  outside  the  carrier's  under- 
taking, and  outside  the  field  of  reasonable  supervision  of  the 
conduct  of  its  business,  and  would  be  equivalent  to  an  appro- 
priation of  the  property  to  public  uses  upon  terms  to  which  the 
carrier  had  in  no  way  agreed.  It  does  not  aid  the  argument 
to  urge  that  the  State  may  permit  the  carrier  to  make  good  its 
loss  by  charges  for  other  transportation.  If  other  rates  are 
exorbitant,  they  may  be  reduced.  Certainly,  it  could  not  be 
said  that  the  carrier  may  be  required  to  charge  excessive  rates 
to  some  in  order  that  others  might  be  served  at  a  rate  unreason- 
ably low.  That  would  be  but  arbitrary  action.  We  cannot 
reach  the  conclusion  that  the  rate  in  question  is  to  be  supported 
upon  the  ground  of  public  policy  if,  upon  the  facts  found,  it 
should  be  deemed  to  be  less  than  reasonable. 

The  legislature,  undoubtedly,  has  a  wide  range  of  discretion 
in  the  exercise  of  the  power  to  prescribe  reasonable  charges, 
and  it  is  not  bound  to  fix  uniform  rates  for  all  commodities  or 
to  secure  the  same  percentage  of  profit  on  every  sort,  of  business. 
There  are  many  factors  to  be  considered,  differences  in  the  arti- 
cles transported,  the  care  required,  the  risk  assumed,  the  value 
of  the  service,  and  it  is  obviously  important  that  there  should 
be  reasonable  adjustments  and  classifications.  Nor  is  its  author- 
ity hampered  by  the  necessity  of  establishing  such  minute  dis- 
tinctions that  the  effective  exercise  of  the  rate-making  power 
becomes  impossible.  It  is  not  bound  to  prescribe  separate  rates 
for  every  individual  service  performed,  but  it  may  group  services 
by  fixing  rates  for  classes  of  traffic.  As  repeatedly  observed,  we 
do  not  sit  as  a  revisory  board  to  substitute  our  judgment  for  that 
of  the  legislature,  or  its  administrative  agent,  as  to  matters 
within  its  province.  San  Diego  Land  &  Town  Co.  v.  Jasper, 
189  U.  S.  439 ;  Louisville  &  Nashville  R.  R.  v.  Garrett,  231  U.  S. 
298,  313.  The  court,  therefore,  is  not  called  upon  to  concern 
itself  with  mere  details  of  a  schedule ;  or  to  review  a  particular 
tariff  or  schedule  which  yields  substantial  compensation  for  the 
services  it  embraces,  when  the  profitableness  of  the  intrastate 
business  as  a  whole  is  not  involved. 

But  a  different  question  arises  when  the  State  has  segregated 
a  commodity,  or  a  class  of  traffic,  and  has  attempted  to  compel 
the  carrier  to  transport  it  at  a  loss  or  without  substantial  com- 


NORTHERN  PAC.  RY.  CO.  v.  NORTH  DAKOTA.    425 

pensation  even  though  the  entire  traffic  to  which  the  rate  is 
applied  is  taken  into  account.  On  that  fact  being  satisfactorily 
established,  the  assumption  of  reasonableness  is  rebutted.  If  in 
such  a  case  there  exists  any  practice,  or  what  may  be  taken  to 
be  (broadly  speaking)  a  standard  of  rates  with  respect  to  that 
traffic,  in  the  light  of  which  it  is  insisted  that  the  rate  should 
still  be  regarded  as  reasonable,  that  should  be  made  to  appear. 
As  has  been  said,  it  does  not  appear  here.  Frequently  attacks 
upon  state  rates  have  raised  the  question  as  to  the  profitable- 
ness of  the  entire  intrastate  business  under  the  State's  require- 
ments. But  the  decisions  in  this  class  of  cases  furnish  no  ground 
for  saying  that  the  State  may  set  apart  a  commodity  or  a  spe- 
cial class  of  traffic  and  impose  upon  it  any  rate  it  pleases,  pro- 
vided only  that  the  return  from  the  entire  intrastate  business  is 
adequate.  .  .  . 

The  judgments,  respectively,  are  reversed  and  the  cases  are 
remanded  for  further  proceedings  not  inconsistent  with  this 
opinion.  It  is  so  ordered.  . 

MB.  JUSTICE  PITNEY  dissents. 

NOTE. — Accord:  Norfolk  &  Western  By.  v.  West  Virginia  (1915),  236 
U.  8.  605.  A  carrier  may  be  required  to  furnish  a  facility  which  it  is  part 
of  its  general  duty  to  furnish  even  though  this  entails  a  loss,  Atlantic  Coast 
Lane  By.  v.  North  Carolina  Corporation  Commission  (1907),  206  U.  8.  1, 
but  to  require  it  to  furnish  a  facility  which  it  is  not  its  duty  to  furnish 
deprives  it  of  property  without  due  process  of  law.  Great  Northern  By. 
v.  Minnesota  (1915),  238  U.  8.  340. 

Most  of  the  legislation  adopted  for  the  regulation  of  transportation  and 
other  public  service  companies  has  to  do  with  the  making  of  rates,  authority 
over  which  has  been  generally  vested  in  commissions.  The  function  of  rate- 
making  is  of  a  legislative  character,  Knoxville  v.  Knoxville  Water  Co. 
(1909),  212  U.  8.  1,  8,  and  to  vest  it  in  a  commission  seemed  a  violation  of 
the  maxim  that  legislative  power  cannot  be  delegated,  but  the  validity  of 
such  a  delegation  is  no  longer  questioned.  Interstate  Commerce  Commission 
v.  Goodrich  Transit  Co.  (1912),  224  U.  8.  194.  Bate  regulation  is  subject 
to  the  constitutional  provisions  for  the  protection  of  property,  Beagan  v. 
Fanners'  Loan  &  Trust  Co.  (1894),  154  U.  8.  362.  Hence  any  regulation 
of  rates  which  all  things  considered  makes  impossible  a  fair  return  is  in- 
valid. San  Diego  Land  *  Town  Co.  v.  Jasper  (1903),  189  U.  8.  439;  Willcox 
v.  Consolidated  Gas  Co.  (1909),  212  U.  8.  19.  Whether  a  rate  fixed  by  a 
legislature  or  a  commission  prevents  a  fair  return  or  not  is  a  judicial  ques- 
tion, and  any  attempt  to  debar  an  appeal  to  the  courts  is  a  deprivation  of 
due  process  of  law.  Chicago,  Milwaukee  ft  St.  Paul  By.  v.  Minnesota  (1890), 
134  U.  8.  418;  Ex  part*  Young  (1908),  209  U.  8.  123.  The  eases  on  this 
point  are  collected  in  Evans,  "Judicial  Control  of  Commission  Bate-Mak- 
ing," Cote  and  Comment,  xxi,  895. 


426  CASES  ON  CONSTITUTIONAL  LAW. 

Bates  fixed  by  public  authority  must  not  only  comply  with  the  due  process 
requirement  of  the  Fifth  and  Fourteenth  Amendments,  but  a  rate  fixed  by  a 
State  must  also  be  confined  to  the  intrastate  business  of  the  carrier  in  order 
to  avoid  infraction  of  the  power  of  Congress  over  interstate  commerce.  In 
practice  this  has  proved  the  most  difficult  feature  of  the  regulation  of  rates 
since  practically  all  carriers  are  engaged  in  both  intrastate  and  interstate 
commerce  and  the  two  kinds  of  business  cannot  be  separated.  Under  the 
decision  in  Smyth  v.  Ames  (1897),  169  U.  S.  466,  holding  that  rates  fixed 
by  the  States  on  intrastate  business  must  yield  a  reasonable  return  on  that 
business,  some  separation  must  be  attempted  in  order  to  determine  whether 
they  do  yield  such  a  return.  The  practical  difficulties  in  the  way  of  such 
a  separation  led  the  court  to  suggest  in  the  Minnesota  Rate  Cases  (1913), 
230  U.  S.  352,  432-3,  that  the  two  kinds  of  commerce  were  so  inextricably 
blended  as  perhaps  to  make  it  necessary  for  Congress  to  regulate  both  in 
order  to  have  an  effective  regulation  of  that  which  has  been  specifically 
subjected  to  its  control. 

While  it  is  admitted  that  a  public  service  company  is  entitled  to  a  fair 
return,  there  is  much  difference  of  opinion  as  to  the  factors  entering  into 
the  value  on  which  the  return  should  be  measured.  In  a  much  quoted  passage 
in  Smyth  v.  Ames  (1897),  169  U.  S.  466,  546,  the  Supreme  Court  said: 

We  hold,  however,  that  the  basis  of  all  calculations  as  to  reason- 
ableness of  rates  to  be  charged  by  a  corporation  maintaining  a 
highway  under  legislative  sanction  must  be  the  fair  value  of  the 
property  being  used  by  it  for  the  convenience  of  the  public.  And 
in  order  to  ascertain  that  value,  the  original  cost  of  construction, 
the  amount  expended  in  permanent  improvements,  the  amount  and 
market  value  of  its  bonds  and  stock,  the  present  as  compared  with 
the  original  cost  of  construction,  the  probable  earning  capacity  of 
the  property  under  particular  rates  prescribed  by  statute,  and  the 
sum  required  to  meet  operating  expenses,  are  all  matters  for  con- 
sideration, and  are  to  be  given  such  weight  as  may  be  just  and 
right  in  each  case.  We  do  not  say  that  there  may  not  be  other 
matters  to  be  regarded  in  estimating  the  value  of  the  property. 
What  the  company  is  entitled- to  ask  is  a  fair  return  upon  the  value 
which  it  employs  for  the  public  convenience.  On  the  other  hand, 
what  the  public  is  entitled  to  demand  is  that  no  more  be  exacted 
from  it  for  the  use  of  a  public  highway  than  the  services  rendered 
are  reasonably  worth. 

The  best  discussion  of  rate-making  to  be  found  in  the  reports  is  the 
masterly  opinion  of  Justice  Hughes  in  the  Minnesota  Rate  Cases  (1913), 
230  U.  S.  352.  As  to  the  various  factors  which  may  enter  into  the  value 
upon  which  the  carriers  are  entitled  to  a  fair  return,  see  Cleveland,  C.  C.  & 
St.  L.  Ry.  v.  Backus  (1894),  154  U.  S.  439;  Cumberland  Telephone  &  Tele- 
graph Co.  v.  Memphis  (1908),  187  Fed.  875  (original  investment);  Illinois 
Central  Ry.  v.  Interstate  Commerce  Commission  (1907),  206  U.  S.  441 
(expenditure  for  permanent  improvements) ;  Railroad  Commission  of  Louis- 
iana v.  Cumberland  Telephone  &  Telegraph  Co.  (1909),  212  U.  S.  414  (de- 
preciation fund  as  part  of  capital) ;  Omaha  v.  Omaha  Water  Co.  (1910),  218 
U.  S.  180;  Cumberland  Telephone  &  Telegraph  Co.  v.  Louisville  (1911),  187 
Fed.  637  (going  value)  ;  Consolidated  Gas  Co.  v.  City  of  New  York  (1907), 


NORTHERN  PAC.  RY.  CO.  v.  NORTH  DAKOTA.    427 

157  Fed.  849  (franchise  value) ;  San  Diego  Land  &  Town  Co.  v.  Jasper  (1903), 
189  U.  8.  439;  Public  Sen-ice  Gas  Co.  v.  Public  Utility  Board  (1913),  84 
.\.  J.  Law,  463  (present  value  of  plant) ;  Knoxville  v.  Knoxville  Water  Co. 
(1909),  212  U.  8.  1;  Willcox  v.  Consolidated  Gas  Co.  (1909),  212  U.  8.  19; 
C.  H.  Venner  Co.  v.  Urbana  Waterworks  (1909),  174  Fed.  348;  Steenerson 
T.  Great  Northern  Ry.  (1897),  69  Minn.  353  (present  cost  of  reproduction). 
The  regulation  of  rates,  particularly  of  carriers,  is  comprehensively 
treated  in  Beale  and  Wyman,  Railroad  Rate  Regulation  (2nd  edition).  On 
the  making  of  rates,  see  Noyes,  American  Railroad  Bates;  Hammond,  Bate 
Theories  of  the  Interstate  Commerce  Commission.  On  questions  of  valua- 
tion see  Floy,  Valuation  of  Public  Utility  Properties;  Foster,  Engineering 
Valuation  of  Public  Utilities  and  Factories;  Hayes,  Public  Utilities:  Their 
Cost  New  and  Depreciation;  Wyer,  Regulation,  Valuation,  and  Depreciation 
of  Public  Utilities;  and  Whitten,  Valuation  of  Public  Service  Corporations, 
and  Supplement. 


TABLE  OF  CASES 


Case*  which  are  merely  mentioned  in  the  decisions  or  notes  are  not 
always  included  in  this  table.  Names  of  cases  which  make  up  the  body 
of  the  collection  and  the  pages  on  which  the  decisions  may  be  found  are 
printed  in  italics. 


A 

Adair  v.  United  States,  208  U.  8. 

161 :  343. 
Adams    v.    Milwaukee,    228    U.    8. 

572 :  368. 
Adams    v.    New    York,    192    U.    a 

585:338. 
Adams    Express    Co.   v.    Croninger, 

226  U.  S.  491 :  401. 
Adams    Express    Co.    v.    Kentucky, 

238  U.  S.  190:389. 
Adams  Express  Co.  v.  New  York, 

232   U.   8.    14:535. 
Adams    Express    Co.   v.    Ohio,    165 

U.    8.    194:  292. 
Addyttone  Pipe  A  Steel  Co.  v.  United 

States,  175  U.  8.  211:  279,  310. 
Ah  Lin  v.  Wittman,  198  U.  8.  500: 

382. 
Alabama    v.    Georgia,    23    Howard, 

505:  159. 
Allen    v.    Inhabitants    of    Jay,    60 

Me.  127:207. 
A 11  gey er    v.    Louisiana,    165    U.    S. 

578:312,  316,  343,  374. 
Allison   v.   Corker,   67   U.   8.   Law, 

596:  11. 
Almy    v.    California,    24    Howard, 

169:  263. 
American  Express  Co.  v.  Iowa,  196 

U.  8.  133:292. 
American  Insurance  Co.  v.  Canter, 

1   Peters,  511:59. 
American  School  of  Magnetic  Heal- 
ing   v,    McAnnulty,    187    U.    8. 

94:  338. 

Anderson    v.    Pacific    Coast    Steam- 
ship Co.,  225  U.  8.  187:300. 


Atlantic  Coast  Line  By.  v.  Georgia, 
234  U.  8.  280:405. 

Atlantic  Coast  Line  By.  v.  G  olds- 
bo  ro,  232  U.  S.  548:407. 

Atlantic  Coast  Line  By.  v.  N.  C. 
Corporation  Com.,  206  U.  8. 
1 :  425. 

Attorney-General  v.  Eau  Claire,  37 
Wis.  400:  211. 

Austin  v.  Tennessee,  179  U.  8. 
343 :  292,  373. 

Austin  v.  Day,  2  Giff.  628:  201. 

B 
Baccus    v.    Louisiana,    232    U.    8. 

334 :  369. 

Bacon  v.  Walker,  204  U.  S.  311 :  413. 
Baillie  v.  Larson,  138  Fed.  177:  421. 
Baldwin  v.  Hale,  1  Wallace,  223: 

184. 
Baltic  Mining  Co.  v.  Massachusetts, 

231  U.  S.  68:368. 
Baltimore  &  Ohio  By.  v.  Interstate 

Commerce  Commission,  221  U.  8. 

612. 

Bank   v.    The   Supervisors,   7   Wal- 
lace, 26 :  220. 
Bank    of   Commerce   v.    New   York 

City,  2  Black,  620:  220. 
Banks   v.    The    Mayor,    7    Wallace, 

16:  220. 
Barbier  v.  Connolly,  113  U.  8.  27: 

860,  412. 
Harrington   v.   Missouri,   205  U.   8. 

483:  116. 
Barren  v.  Baltimore,  7  Peters,  243: 

116,  329. 
Bartmeyer  v.  Iowa,  16  Wallace,  130: 

119. 


430 


TABLE  OF  CASES 


Barvitz  v.  Beverley,  163  U.  S.  118: 

184. 
Baxter    v.    Commissioners,    4    Com. 

L.  B.    (Australia),  Pt.  II,  1087: 

228. 
Beer  Company  v.  Massachusetts,  97 

U.  S.   25:373,  381. 
Berea  College  v.  Kentucky,  211  U.  S. 

45:  356. 
Binghamton  Bridge,  3  Wallace,  51: 

171. 
Blake  v.  McClung,  172  U.  S.  239: 

359. 
Board  of  Trade  v.  Christie  Grain  & 

Stock  Co.,  198  U.  S.  236:  420. 
Bonham's   Case,   8   Eep.   118a:  327, 

334. 
Boone     County     v.     Patterson,     98 

U.  S.  403 :  420. 

Booth  v.  Illinois,  184  U.  S.  425:  382. 
Bosley    v.    McLaughlin,    236    U.    S. 

385:  369. 

Bowman   v.    Chicago    &   Northwest- 
ern By.,  125  U.  S.  465:  292,  385. 
Boyd  v.  Thayer,  143  U.  S.  135:  104. 
Bradwell  v.  Illinois,  16  Wallace,  130 : 

119. 
Brass  v.  North  Dakota,  153  U.  S. 

391 :  420. 
Briscoe   v.   Bank    of   Kentucky,    11 

Peters,  257:  190,  202. 
Bronson  v.  Kinzie,  1  Howard,  311: 

184. 
Bronson  v.  Eodes,  7  Wallace,  229: 

204. 
Brown     v.  Houston,  114  U.  S.  622: 

292. 
Brown    v.    Maryland,    12    Wheaton, 

419 :  280. 
Brown  v.  New  Jersey,  175  U.  S.  172 : 

116,  320,  337. 
Budd  v.  New  York,  143  U.  S.  517: 

420. 
Burlington  Township  v.  Beasley,  94 

U.  S.  310:  211. 
Butchers'    Union    Slaughter    House 

Co.    v.    Crescent    City   Live-Stock 

Landing  Co.,  Ill  U.  S.  746:  119, 

380. 
Buttfield   v.   Stranahan,   192   U.   S. 

470:318,    338. 


Calder  v.  Bull,  3  Dallas,  386 :  184, 

327. 
California  v.   San   Pablo   &  Tulare 

By.,  149  U.  S.  308 :  11. 
California  Seduction  Co.  v.  Sanitary 

Beduction  Works,  199  U.  S.  306: 

373. 

Gallon  v.  Wilson,  127  U.  S.  540:  62. 
Calvin 's  Case,  7  Eep.  1 :  98,  100. 
Camfield  v.  United  States,  167  U.  S. 

518:  412. 
Capital   City  Light  &   Fuel   Co.   v. 

Tallahassee,  186  U.  S.  401 :  420. 
Carroll  v.   Greenwich  Ins.   Co.,   199 

U.  S.  401:  366. 
Central  Land  Co.  v.  Laidley,  159  U. 

S.  103 :  184. 
Central  Lumber  Co.  v.  South  Dakota, 

226  U.  S.  157:364,  368. 
Chae  Chan   Ping  v.   United  States, 

130  U.  S.  581:  36. 
Champion  v.  Ames,  188  U.  S.  321: 

813. 
Charles  River  Bridge  Co.  v.  Warren 

Bridge  Co.,  11  Peters,  420:  171. 
CheroTcee  Nation  v.  Georgia,  5  Pet- 
ers, 1 :  103,  142,  152. 
Cherokee  Nation  v.  Hitchcock,   187 

U.  S.  294:359. 
Cherokee    Trust   Funds,    117    U.    S. 

288 :  103. 
Chesapeake    &    Potomac    Telephone 

Co.  v.  Manning,   186  U.  S.  238: 

420. 
Chicago  v.  Sturges,  222  U.  S.  313: 

395. 
Chicago  &  Alton  By.  v.  Tranbarger, 

238  U.  S.  67:413. 
Chicago,  Burlington  &  Quincy  By.  v. 

Chicago,  166  U.  S.  226:  328,  329. 
Chicago,  Burlington  &  Quincy  By.  v. 

Drainage    Commissioners,   200   U. 

S.  561:412,  413. 
Chicago,  Burlington  &  Quincy  By.  v. 

McGuire,  219  U,  S.  549:  367,  397, 

404,  413. 
Chicago  &  Grand  Trunk  By.  v.  Well- 

man,  143  U.  S.  339 :  11. 


TABLE  OF  CASES 


431 


Chicago,  Milwaukee  &  St.  Paul  Ry.  v. 

Minneapolis,  232  U.  8.  430:  407. 
Chicago,  Milwaukee  &  St.  Paul  Ry.  v. 

Minnesota,  134  U.  8.  418:  339,  340, 

425. 
Chiles  v.  Chesapeake  &  Ohio  Ry.,  218 

U.  8.  71:  356. 
Chisholm  v.  Georgia,  2  Dallas,  419: 

126,   154,   156. 

Choate  v.  Trapp,  224  U.  8.  665:  359. 
Christian  v.  Atlantic  &  N.  C.  Ry.,  133 

U.  S.  233 :  157. 

Church  v.  Kelsey,  121  U.  8.  282:  171. 
C.  H.  Venner  Co.  v.  Urbana  Water- 
works, 174  Fed.  348:427. 
Chy  Lung  v.  Freeman,  92  U.  8.  275 : 

358. 

Cincinnati,  N.  O.  &  Tex.  Ry.  v.  In- 
terstate    Commerce     Commission, 

162  U.  8.  184:  279. 
Citizens   Insurance    Co.   v.    Parsons, 

7  L.  R.  Appeal  Cases,  96:  253. 
City   of    Minneapolis   v.   Reum,    56 

Fed.  576. 
Civil   Rights  Cases,   109  U.   8.  3: 

119. 
Clark  v.  Tousey,  Acts  of  the  Privy 

Council,  III  580:  8. 
Cleveland,  C.  C.  &  St.  L.  Ry.  v.  Back- 
us, 154  U.  8.  439:  426. 
Coe  v.  Errol,  116  U.  8.  517:  260,  292. 
Cohen*  v.  Virginia,  6  Wheaton,  264 : 

13t. 

Cole  v.  La  Grange,  113  U.  8.  1:  211. 
Collector  V.  Day,  11  Wallace,  113: 

•ML 
Collins  v.  New  Hampshire,  171  U.  8. 

30:  373. 
Commercial  Bank  v.  Buckingham's 

Executors,  5  Howard,  317:  184. 
Commonwealth  v.  Alger,  7  Gushing, 

53:373,381. 

Commonwealth  v.  Caton,  4  Call,  5:  9. 
Commonwealth  v.  Hamilton  Mfg.  Co., 

120  Mass.  383:376. 
Consolidated  Gas  Co.  v.  City  of  New 
'York,  157  Fed.  849:426. 
Cook  v.  Marshall  County,  196  U.  8. 

261 :  292,  373. 
Cook  v.  Moffatt,  5  Howard,  295:  184. 


Cooley  v.  Wardens  of  the  Port,  12 
Howard,  299:595,  383. 

Coppage  v.  Kansas,  236  U.  S.  1 :  S4S. 

Corfield  v.  Coryell,  4  Washington's 
Circuit  Court,  371 :  108. 

Cotting  v.  Kansas  City  Stockyards 
Co.  183  U.  S.  79:420. 

County  of  Mobile  v.  Kimball,  102  U. 
8.  691 :  308. 

Coutzen  v.  United  States,  179  U.  8. 
191 :  104. 

Covington  &c.  Turnpike  Co.  v. 
Sandford,  164  U.  8.  578 :  420. 

Covington  Bridge  Co.  v.  Kentucky, 
154  U.  8.  204:  263. 

Craig  v.  Missouri,  4  Peters,  410 :  185, 
197,  201. 

Crandall  v.  Nevada,  6  Wall.  35:  4S, 
110,  117. 

Crutcher  v.  Kentucky,  141  U.  S.  47: 
400. 

Cumberland  Tel.  &  Tel.  Co.  v.  Louis- 
ville, 187  Fed.  637:  426. 

Cumberland  Tel.  &  Tel.  Co.  v.  Mem- 
phis, 187  Fed.  875:426. 


Daggett  v.  Colgan,  92  Cal.  53:  211. 
Dalles  Lumbering  Co.  v.  Urquhart, 

18  Or.  67:421. 
Darrington  v.  Bank  of  Alabama,  13 

Howard,  12:  195. 
Dartmouth  College  v.  Woodward,  4 

Wheaton,  518 : 160. 
Davidson  v.  New  Orleans,  96  U.  8. 

77:  320,  328. 
Davis  v.   Massachusetts,   167  U.  8. 

43 :  413. 

Day  v.  Savadge,  Hobart,  87 :  327. 
Deal  v.  Mississippi  County,  107  Mo. 

464:211. 

De  Lima  v.  Bidwell,  182  U.  8.  1 :  70. 
D'Emden  v.  Pedder,  1  Com.  L.  R. 

(Australia)  91:  228. 
Dent   v.  West  Virginia,   129  U.  8. 

114:413. 
Diamond  Match  Co.  v.  Ontanagon, 

188  U.  8.  82:  292. 
Dobbins  v.  Erie  County,  16  Peters, 

435:  224. 


432 


TABLE  OF  CASES 


Dodge  v.  Mission  Township,  46  C. 

C.    A.    661:  211. 

Doe  v.  Braden,  16  Howard,  635 :  152. 
Dorr   v.    United   States,    195   U.   S. 

138:  79,    338. 
Douglas  v.  County  of  Pike,  101  U. 

S.  677:  184. 
Douglas    v.    Kentucky,    168    U.    S. 

488:  315. 
Dowries  v.  Bidwell,  182  U.  S.  244: 

65. 


E 


Easterling  Lumber  Co.  v.  Pierce,  235 

U.  S.  380:369. 
Eberle  v.  Michigan,  232  U.  S.  700: 

369. 
Edwards  v.  Kearzey,  96  U.  S.  595: 

184. 
Elk  v.  Wilkins,   112   U.   S.   94:  97, 

103. 
El    Paso    &    Northwestern    Ey.    v. 

Gutierrez,  215  U.  S.  87:  279. 
Employers'  Liability  Cases,  207  U. 

S.  463:  11,  279. 
Engel  v.  O'Malley,  219  U.  S.  128: 

263. 

Equitable   Life  Ass.    Soc.   v.  Penn- 
sylvania, 238  U.  S.  143 :  253. 
Erie  Ey.  v.  Williams,  233  U.  S.  685: 

413. 
Escanaba  Co.  v.  Chicago,  107  U.  S. 

678 :  389. 
Eubank  v.  Eichmond,  226  U.  S.  137 : 

412. 
Ex  parte   Cooper,   143   U.   S.   472: 

152. 
Ex  parte  Virginia,  100  U.  S.  339: 

97,  326,  355,  359. 
Ex  parte  Yarbrough,  110  II.  S.  651 : 

117,  123. 
Ex  parte  Young,  209  U.  S.  123 :  10, 

132,  339,  341,  425. 
Express  Cases,  117  U.  S.  1 :  420. 


F 


Fallbrook     Irrigation     District     v. 
Bradley,  164  U.  S.  112:  211. 


Fifth    Avenue    Coach    Co.    v.    New 

York,  221  U.  S.  467 :  413. 
Fletcher  v.  Peck,  6  Cranch,  87 :  11, 

171,   184,  328. 
Florida  v.  Georgia,  17  Howard,  478 : 

159. 
Fok  Yung  Yo  v.  United  States,  185 

U.  S.  296 :  41. 
Fong  Yue  Ting  v.  United  States,  149 

U.  S.  698 :  35,  101. 
Foster  v.   Kansas,   112  U.   S.   201: 

378. 
Foster   v.    Nielson,    2    Peters,    253: 

152. 


G 


Garcia  v.  Lee,  12  Peters,  511:  152. 
Gatewood  v.  North  Carolina,  203  U. 

S.  531:  382. 
Geer  v.  Connecticut,  161  U.  S.  519: 

367. 
Gelpcke  v.  Dubuque,  1  Wallace,  175: 

184. 
Gelston  v.  Hoyt,   3  Wheaton,  246: 

152. 
General  Oil  Co.  v.  Grain,  209  U.  S. 

211 :  292. 
Georgia  v.  Stanton,  6  Wallace,  50: 

152. 
Georgia  Eailroad  &  Banking  Co.  v. 

Smith,  128  U.  S.  174:373. 
German  Alliance  Ins.  Co.  v.  Lewis, 

233  U.  S.  389:  420. 
Gibbons  v.    Ogden,   9   Wheaton,   1: 

245,  263,  305,  318,  372,  388,  410. 
Gibbs  v.  Consolidated  Gas  Co.,  130 

U.  S.  396 :  420. 
Gilman  v.  Philadelphia,  3  Wallace, 

713:  263,  305,  392. 
Gloucester    Ferry    Co.    v.    Pennsyl- 
.    vania,  114  U.  S.  196 :  292. 
Goldfield  Consolidated  Mines  Co.  v. 

Goldfield  Miners'  Union,  159  Fed. 

500 :  350. 
Gonzales  v.  Williams,  192  U.  S.  1: 

103. 
Gordon  v.  United  States,  117  U.  S. 

697:  156. 


TABLE  OF  CASES 


433 


Grand  Trunk  Western  Ry.  v.  R.  R. 

Com.  of  Indiana,  221  U.  8.  400: 

184,  340. 
Great    Northern    Ry.    v.    Minnesota, 

238  U.  8.  340:  425. 
Green  v.  Biddle,  8  Wheaton.  1 :  171. 
Griffith   v.    Connecticut,    218    U.    8. 

563 :  413. 
Gut/m  <f  Seal  v.  United  States,  238 

U.  8.  347:  119. 
Gulf,  Colo.  &  Santa  Fe  Ry.  v.  Ellis, 

165  U.  8.  150:  359. 
Gunn   v.   Barry,    15   Wallace,   610: 

184. 


Hagar  v.  Reclamation  District,  111 

U.  8.  701:338. 
Halter  v.  Nebraska,  205  U.  8.  34: 

11. 
Hammerstein     v.     Lyne,    200    Fed. 

165:  103. 
Hanley  v.  Kansas  City  Southern  Ry., 

187  U.  8.  617 :  263,  310. 
Hans   v.   Louisiana,    134   U.   8.    1: 

132,  139. 
Hanson    v.    Vernon,    27    Iowa,    28: 

207. 
Hawaii  v.  Mankichi,  190  U.  8.  197: 

79,  338. 
Hays  v.  Pacific  Mail  Steamship  Co., 

17  Howard,  596:328. 
Head  Money  Cases,  112  U.  8.  580: 

263. 
Heckman  v.  United  States,  224  U. 

8.  413:  147. 
Henderson  v.  Mayor  of  New  York, 

92  U.  8.  259:358,  372. 
Hendrick   r.   Maryland,   235   U.   8. 

610:407. 
Hepburn  v.  Ellzey,  2  Cranch.  445: 

103. 
Hepburn    v.   Griswold,    8    Wallace, 

616:  199. 
Heyman   v.   Hays,   236   U.  8.   178: 

389. 
Hibben   v.   Smith,   191   U.   8.  310: 

Mfc 


Hibernia  Savings  and  Loan  Society 

v.  San  Francisco,  200  U.  8.  310: 

220. 
Hodges  v.  United  States,  203  U.  8. 

1:  117,  119. 
Holden   v.   Hardy,   169   U.  8.   366: 

320,  374. 
Home  Savings  Bank  v.  Des  Moines, 

205  U.  S.  503:  220. 
Hooper    v.    California,    155    U.    8. 

647 :  253. 
Hope  v.  United  States,  227  U.  8. 

308:318. 
Hopkins    v.     Clemson     Agricultural 

College,  221  U.  S.  636 :  132. 
Houston,    E.   4-    W.    Texas    By.    v. 

United  State*,  234  U.  S.  342 :  306. 
Houston  &  T.  C.  Ry.  v.  Mayes,  201 

U.   8.  321 :  263. 
Houston  &  T.  C.  Ry.  v.  Texas,  177 

U.  S.  66:  195. 
Hovey   v.   Elliott,   167   U.   S.   409: 

324. 
Hunter    v.    Pittsburgh,    207    U.    8. 

161 :  359. 
Hurtado   v.    California,   110    U.   8. 

516:  118,  320,  SSI. 
Hylton  v.  United  States,  3  Dallas, 

171 :  221,  gS4. 


Illinois  Central  Ry.  v.  Behrens,  233 

U.  S.  473:308. 
Illinois  Central  Ry.  v.  Illinois,  146 

U.  8.  387:  171. 
Illinois  Central  Ry.  v.  McKendree, 

203  U.  S.  514:  11. 
Indiana  v.  Kentucky,  136  U.  S.  479 : 

159. 
Inglis  v.   Sailors'  Snug   Harbor,  3 

Peters,  99:  98,  104. 
In  re  Baiz,  135  U.  8.  432:  153. 
In  re  Berger,  33  Ohio  C.  C.  289: 

350. 

In  re  Debs,  158  U.  8.  564:  300. 
In  re  Duncan,  139  U.  8.  461 :  152. 
In  re  Heff,  197  U.  8.  488:  359. 
In  re  Kemmler,  136  U.  a  436:  117. 


434 


TABLE  OF  CASES 


In  re  Lockwood,  154  U.  S.  116 :  119. 
In  re  N eagle,  135  U.  S.  1 :  g8. 
In  re  Quarles,  158  U.  S.  532 :  117. 
In  re  Kahrer,  140  U.  S.  545 :  317, 

388. 

In  re  Boss,  140  U.  S.  453 :  78. 
In  re  Tenny,  86  Fed.  303 :  41. 
International  Harvester  Co.  of 

America  v.  Kentucky,  234  U.  S. 

216:329. 
International  Text-Book  Co.  v.  Pigg, 

217  U.  S.  91 :  263,  400. 
Inter-Ocean  Publishing  Co.  v.  Asso- 
ciated Press,  184  111.  438 :  421. 
Interstate  Commerce  Commission  v. 

Brimson,  154  U.  S.  447 :  11. 
Interstate  Commerce  Commission  v. 

Goodrich  Transit  Co.,  224  U.   S. 

194:  308,  425. 
Iowa  v.  Illinois,  202  U.  S.  59:  159. 


Jacobson  v.   Massachusetts,  197  U. 

S.  11 :  343. 
James  v.  Bowman,  190  U.  S.  127: 

11,  119. 
Japanese  Immigrant  Cases,  189  U. 

S.  86:  41,  338. 
Jeffrey  Mfg.  Co.  v.  Blagg,  235  U. 

S.  571:  369. 
Jetton  v.  University  of  the  South, 

208  U.  S.  489:  178. 
Jones  v.  Meehan,  175  U.  S.  1 :  359. 
Jones  v.  United  States,  137  U.  S. 

202:  152. 
Joplin  v.  Southwest  Missouri  Light 

Co.,  191  U.  S.  150:  177. 
Juilliard  v.   Greenman,   110    U.    S. 

421:135. 


Kansas  v.  Colorado,  185  U.  S.  125, 
206  U.  S.  46:35,  159. 

Kansas  v.  United  States,  204  U.  S. 
331:  159. 

Kansas  City  Southern  Ey.  v.  An- 
derson, 233  U.  S.  325:  369. 

Kelley  v.  Ehoads,  188  U.  S.  1 :  292. 


Kennett  v.   Chambers,   14   Howard, 

38:  152. 
Keokee  Coke  Co.  v.  Taylor,  234  U. 

S.  224:369. 

Kidd  v.  Pearson,  128  U.  S.  1 :  260. 
Kimmish   v.   Ball,   129   U.   S.   217: 

373. 

King  v.  Mullins,  171  U.  S.  404:  337. 
Knights    Templars'    Indemnity    Co. 

v.  Jarman,  187  U.  S.  197:  10. 
Knox   v.    Lee.      See    Legal    Tender 

Cases. 
Knoxville  v.   Knoxville  Water   Co., 

212  U.  S.  1 :  425,  427. 


Laclede  Gas  Light  Co.  v.  Murphy, 

170  U.  S.  78:407. 
Lake  Shore  &  Mich.  So.  Ey.  v.  Ohio, 

173  U.  S.  285 :  413. 
Lane  County  v.  Oregon,  7  Wallace, 

76 :  48,  204,  226. 

Lang  v.  Eandall,  4  Dill.  425:  103. 
Lankford  v.  Platte  Iron  Works,  235 

U.  S.  461:  132. 
Lapina  v.  Williams,  232  U.  S.  78: 

41. 
Laramie  County  v.  Albany  County, 

92  U.  S.  307:  170. 
Lawton  v.  Steele,  152  U.  S.  133 :  368, 

373. 
Lee  v.  Bude  &  Torrington  Ey.,  L.  E., 

6  C.  P.  576:327. 
Lee  Ah  Yin  v.  United  States,   116 

Fed.    614:  41. 
Legal  Tender  Cases,  12  Wall.  457: 

34,  37,  199,  202,  203,  204. 
Leisy   v.   Hardin,    135    U.    S.    100: 

292,  382,  409. 
Leloup  v.   Port  of  Mobile,   127  U. 

S.  640:292,  400. 
Lew  Quen  Wo  v.  United  States,  184 

Fed.  685:41. 
L'Hote  v.  New  Orleans,  177  U.  S. 

587:  368,  382. 
License  Cases,  5  Howard,  504:  292, 

299,  370,  386,  415. 
Lindsley   v.    Natural    Carbonic   Gas 

Co.,  220  U.  S.  61 :  365,  368. 


TABLE  OF  CASES 


435 


Li  Sing  v.  United  States,  180  U.  S. 

486:  356. 
Livingston  v.  Moore,  7  Peters,  469: 

184. 

Loan  Atiociation  v.  TopeJca,  20  Wal- 
lace, 655:  £05. 
Loewe  v.   Lawler,   208   U.  S.   274: 

279. 
Logan  T.  United  States,  144  U.  8. 

263:  117. 
Lone  Wolf  v.  Hitchcock,  187  U.  8. 

553:  103,   152. 
Lord  T.   Steamship  Co.,   102  U.   8. 

541 :  310. 
Los  Angeles  v.  City  Water  Co.,  177 

U.  8.  558:  171. 

Lottery  Cote,  188  U.  8.  321:  SIS. 
Louisiana  v.  Mississippi,  202  U.  S. 

158:159. 
Louisiana  v.  New  Orleans,  109  U.  8. 

285:  171. 
Louisiana  v.  Pilsbury,  105  U.  S.  278 : 

184. 

Louisiana  v.  Texas,  176  U.  8.  1:  159. 
Louisiana  Ry.  &  Navigation  Co.  T. 

New    Orleans,    235    U.    S.    164: 

184. 

Louisville  ft  Nashville  By.  v.  Gar- 
ret t,  231  U.  8.  298:  339,  424. 
Louisville  ft  Nashville  By.  T.  Mel- 
ton, 218  U.  8.  36:368. 
Low  Wah  Suey  v.  Backus,  225  U. 

8.  460:43. 
Lowell  v.  Boston,   111  Mass.  454: 

207,  211. 
Luria  v.  United  States,  231  U.  8. 

9:  104. 
Luther   v.   Borden,   7   Howard,   42: 

51,  148. 


MacKenzie  v.  Wooley,  39  La.  Ann. 

944:211. 
Magoun  v.  Illinois  Trust  ft  Savings 

Bank,  170  U.  8.  283:  366. 
Mallinckrodt  Chemical  Works  v.  St. 

Ixmis,  238  U.  8.  41:  11. 
Marbury  V.  Madison,  \  Cranoh.  137: 

1. 
Marshall  v.  Dye,  231  U.  S.  250:  11. 


Martin  v.  Hunter's  Lessee,  1  Whea- 

ton,  304:  142. 
Martin   v.   Mott,    12   Wbeaton,   29: 

151,  152. 
Martin   v.   Texas,   200   U.   8.   316: 

355. 

Marvin  v.  Trout,  199  U.  8.  212:  382. 
Maxwell  v.  Dow,  176  U.  8.  581:  116, 

118,  338. 
May  &  Co.  v.  New  Orleans,  178  U. 

8.  496:292. 
Maynard   v.    Hill,    125   U.   8.    190: 

171. 
McCabe  v.  A.  T.  ft  S.  F.  By.,  235 

U.  8.  151:356. 
McCray  v.  United  States,  195  U.  8. 

27:  11. 
McCulloch  v.  Maryland,  4  Wheaton, 

316:15,  197,  199,  204,  209,  tit, 

224,  225,  228,  230,  291,  363. 
Mcllvaine     v.     Coxe's     Lessee,     4 

Cranch.  209:  104. 
McEane  v.  Durston,  153  U.  8.  684: 

338. 
McLean  v.  Arkansas,  211  U.  S.  539: 

413. 
McMillen    v.    Anderson,    95    U.    S. 

37:337. 
Meriwether   v.    Garrett,    102    U.    S. 

472:  156. 

Michigan  Sugar  Co.  v.  Auditor  Gen- 
eral, 124  Mich.  674:  211. 
Miller  v.  Texas,  153  U.  S.  535:  413. 
Miller  v.  Wilson,  236  U.  8.  373:  369. 
Milwaukee  Electric  By.  v.  Milwau- 
kee, 87  Fed.  577:421. 
Minnesota  v.  Barber,  136  U.  8.  313: 

1L 
Minnesota  v.  Hitchcock,  185  U.  8. 

373:  159. 
Minnesota  Iron  Co.  v.  Kline,  199  U. 

8.  593 :  407. 
Minnesota   Bate   Cases,   230   U.    8. 

352:308,  400,  426. 
Minor   T.    Happersett,    21    Wallace, 

162:  76,  119. 
Missouri  v.  Illinois  and  the  Sanitary 

District,  180  U.  8.  208:  154,  156, 

159. 


436 


TABLE  OF  CASES 


Missouri  v.  Iowa,  7  Howard,  660: 

159. 
Missouri  v.  Lewis,   101   U.   S.   22: 

325. 
Missouri,    Kansas   &   Texas   By.   v. 

Cade,  233  U.  8.  642 :  369. 
Missouri,   Kansas  fy    Texas  By,   v. 

May,  194  U.  S.  267:363. 
Missouri  Pacific  Ey.  v.  Mackey,  127 

U.  S.  205:365. 
Missouri    Pacific   By.    v.    Nebraska, 

164  U.  S.  403:211. 
Montague  &  Co.  v.  Lowry,  193  U.  S. 

38:  263,  279. 
Moore-Mansfield  Construction  Co.  v. 

Electrical  Installation  Co.,  234  U. 

S.  619:  184. 
Moore  v.  Sanford,  151  Mass.  285: 

211. 
Mugler  v.  Kansas,  123  U.  S.  623: 

577. 
Munn  v.  Illinois,  94  U.  S.  113 :  379, 

413. 
Murray  v.  Charleston,  96  U.  S.  432 : 

184. 
Murray  v.    Hoboken   Land   Co.,   18 

Howard,  272 :  320,  337. 
Musgrove  v.  Chun  Teeong  Loy,  L.  B. 

1891,  App.  Cases,  272 :  40. 
Muskrat  v.  United  States,  219  U.  S. 

346:  11. 

Mutual  Film  Corporation  v.  Indus- 
trial Com.  of  Ohio,  236  U.  S.  230 : 

413. 
Mutual  Loan  Co.  v.  Martell,  222  U. 

S.  225:413. 


N 


Nathan    v.    Louisiana,    8    Howard, 

73 :  263. 
National  Bank  v.  Commonwealth,  9 

Wallace,  353 :  219. 
National    Bank    v.    United    States, 

101  U.  S.  1:  200. 
Neal  v.  Delaware,  103  U.  S.  370: 

97,  123,  359. 
Neeley  v.  Henkel,   180  U.   S.  109: 

152. 
Nelson  v.  St.  Martin's  Parish,  111 

U.  S.  716:  184. 


New   Hampshire  v.  Louisiana,   108 

U.  S.  76:  159. 
New   Jersey   v.   Wilson,    7    Cranch, 

164:  171. 
New  Orleans  Canal  &  Banking  Co. 

v.  Heard,  47  La.  Ann.  1679:  11. 
New  Orleans  Gas  Co.  v.  Louisiana 

Light  Co.,  115  U.  S.  650:  380. 
New  Orleans  Ey.  v.   New   Orleans, 

157  U.  S.  219:  184. 
New  Orleans  Water  Co.   v.  Eivers, 

115  U.  S.  674:  171. 
New    Orleans    Waterworks    Co.    v. 

Louisiana  Sugar  Eefining  Co.,  125 

U.  S.  18:  184. 
New  Jersey  v.  New  York,  5  Peters, 

284 :  159. 
New  York  v.  Miln,  11  Peters,  102: 

411. 
New  York  v.  Van  De  Carr,  199  U. 

S.  552:373. 
New  York  &  New  England  Ey.  v. 

Bristol,  151  U.  S.  556 :  404. 
New  York  Life  Ins.  Co.  v.  Cravens, 

178  U.  S.  389:  253. 
New    York   Life    Ins.    Co.    v.    Deer 

Lodge  County,  231  U.  S.  495:  253. 
New    York,    New    Haven    &    Hart- 
ford Ey.  v.  New  York,  165  U.  S. 

628 :  405. 
Nishimura   Ekiu   v.   United    States, 

142  U.  S.  651 :  36,  40. 
Noble  State  Bank  v.  Haskell,  219  U. 

S.  104:  413. 
Nobles  v.  Georgia,  168  U.  S.  398: 

337. 
Norfolk  &  Western  Ey.  v.  Pendle- 

ton,  156  U.  S.  667:  178. 
Norfolk    &    Western    Ey.    v.    West 

Virginia,  236  U.  S.  605 :  425. 
North  Dakota  v.  Nelson  Co.,  1  No. 

Dak.  88:  211. 
Northern  Pac.  By.  v.  North  Dakota, 

236  U.  S.  585 :  481. 
Northwestern  Fertilizer  Co.  v.  Hyde 

Park,  97  U.  S.  659:  170,  373. 
Norton  v.  Shelby  County,  118  U.  S. 

425:  11. 


TABLE  OF  CASES 


437 


Ogden    v.    Saunders,    12    Wheaton, 

213 :  184. 
Ohio  Oil  Co.  v.  Indiana,  177  U.  8. 

190:  413. 

Ohio  Tax  Cases,  232  U.  S.  576:  369. 
Olcott  T.  Fond  du  Lac  County,  16 

Wallace,  678:  208,  211. 
Old     Wayne    Life    Association     T. 

McDonough,  204  U.  S.  8:  324. 
Oliver  v.  Worcester,  102  Mass.  489: 

233. 
Omaha  v.  Omaha  Water  Co.,  218  U. 

8.  180:  426. 
O'Niel  v.  Vermont,  144  U.  S.  323: 

118. 
Oregon  v.  Hitchcock,  185  U.  S.  373 : 

159. 
Orient  Ins.  Co.  v.  Daggs,  172  U.  8. 

557:366. 
Osborn     v.     Bank    of    the     United 

States,  9  Wheaton,  738 :  102,  104, 

132,  199,  219. 
Osborne  v.  Adams  County,   106  U. 

8.  181:211. 

Otis  v.  Parker,  187  U.  8.  606 :  382. 
Owensboro     v.     Owensboro     Water- 
works Co.,  191  U.  S.  358:  177. 
Owensboro  National  Bank  v.  Owens- 
boro, 173  U.  8.  664:220. 


Pace  v.  Alabama,   106  U.  8.  583: 

356. 
Pacific    Insurance    Co.    v.    Soule,    7 

Wallace,  434:  222. 
Pacific  Telephone  Co.  v.  Oregon,  223 

U.  S.  118:  152. 
Parkersburg   v.    Brown,    106    U.    8. 

487:  211. 
Passenger    Cases,    7    Howard,    283: 

44,  263. 
Patsone  v.  Pennsylvania,  232  U.  8. 

138 :  S67. 
Patterson    v.    Kentucky,    97    U.    8. 

501: 381. 
Paul   v.    Virginia,   8   Wallace,   168: 

hi. 

Pearcy  v.  Stranahan,  205  U.  8.  257: 
152. 


Penniman's  Case,   103   U.   8.   714: 

184. 

Pennoyer  v.  Neff,  95  U.  8.  714:  324. 
Pennsylvania    v.    Wheeling    Bridge 

Co.,  13  Howard,  519:263. 
Pensacola  Tel.  Co.  v.  Western  Union 

Tel.  Co.,  96  U.  8.  1-.S64. 
People   v.   Hartford   Life   Ins.   Co., 

252  111.  398 :  421. 
People  v.  Salem,  20  Mich.  452 :  208, 

211. 
Phalen  v.  Virginia,  8  Howard,  163: 

315. 
Philips  v.  Savage,  Acts  of  the  Privy 

Council,  III,  432 :  8. 
Picard  T.  E.  T.,  Va.  &  Ga.  By.,  130 

U.  8.  637:  178. 

Pipe  Line  Cases,  234  U.  S.  548:  420. 
Piqua  Bank  v.  Knoop,  16  Howard, 

369:  171. 
Plessy  v.  Ferguson,  163  U.  S.  537: 

355. 
Plumley  v.  Massachusetts,  155  U.  S. 

461 :  407. 
Plymouth  Coal  Co.  v.  Pennsylvania, 

232  U.  S.  531:407. 
Poindexter  v.  Greenhow,  114  U.  S. 

270:  132,  195. 
Pollock  v.  Farmers'  Loan  4"  Trust 

Co.,  158  U.  S.  601 :  11,  9S8. 
Powell  v.  Pennsylvania,   127  U.  S. 

678 :  373. 
Presser  v.  Illinois,  116  U.  S.  252: 

118. 
Prince  v.  Crocker,   166  Mass.   347: 

211. 
Providence     Bank     v.     Billings,     4 

Peters,  514:  171,  175. 
Public  Clearing  House  v.  Coyne,  194 

U.  8.  497 :  338. 
Public    Service    Gas   Co.    v.    Public 

Utility  Board,  84  N.  J.  Law,  463: 

427. 
Purity  Extract  Co.  v.  Lynch,  226  U. 

8.  192:  292,  368. 


Quong  Wing  v.  Kirkendall,  223  U. 
8.  59:366. 


438 


TABLE  OF  CASES 


E 


Railroad  Commission  Cases,  116  U. 
S.  307:  177. 

Bailroad  Commission  v.  L.  &  N.  By., 
140  Ga.  817:  339. 

Bailroad  Commission  of  La.  v.  Cum- 
berland Tel.  &  Tel.  Co.,  212  U.  S. 
414:  426. 

Bailroad  Co.  v.  Husen,  95  U.  S.  465 : 
370.* 

Bailroad  Co.  v.  Bichmond,  19  Wal- 
lace, 584:  311. 

Basmussen  v.  United  States,  197  U. 
S.  516:  79,  373. 

Beagan  v.  Farmers'  Loan  &  Trust 
Co.,  154  U.  S.  362 :  132,  425. 

Bees  v.  City  of  Watertown,  19  Wal- 
lace, 107 :  156. 

Beetz  v.  Michigan,  188  U.  S.  505: 
337. 

Eeid  v.  Colorado,  187  U.  S.  137:  373. 

Beynolds  v.  United  States,  98  U.  S. 
145:65. 

Bhode  Island  v.  Massachusetts,  12 
Peters,  657:  155. 

Bhodes  v.  Iowa,  170  U.  S.  412 :  292, 
388. 

Bobbins  v.  Shelby  County  Taxing 
District,  120  U.  S.  489 :  292,  400. 

Bochester  By.  v.  Eochester,  205  U. 
S.  236:  178. 

Boiler  v.  Holly,  176  U.  S.  398 :  324, 
328. 

Boss  v.  Oregon,  227  U.  8.  150:  184. 

Eossi  v.  Pennsylvania,  238  U.  S.  62: 
388. 

Bussell  v.  Sebastian,  233  U.  S.  195: 
184. 


S 


San  Diego  Land  &  Town  Co.  v. 
Jaspar,  189  U.  S.  439 :  424,  425, 
426. 

San  Diego  Land  Co.  v.  National 
City,  174  U.  S.  739:420. 

Sands  v.  Manistee  Eiver  Improve- 
ment Co.,  123  U.  S.  288 :  420. 

Santa  Clara  County  v.  So.  Pac.  By., 
118  U.  S.  396:  359. 


Schollenberger  v.  Pennsylvania,  171 

U.  S.  1:  373. 

Scott  v.  McNeal,  154  U.  S.  34:  324. 
Scott  v.  Sandford,  19  Howard,  393 : 

70,  72,  80,  97,  103. 
Searles  v.  Mann  Co.,  45  Fed.  330: 

420. 
Second  Employers'  Liability  Cases, 

223  U.  S.  1 :  279,  308. 
Shanks  v.  Dumont,   3   Peters,   242: 

104. 
Sharpless  v.  Mayor,  21  Pa.  St.  147: 

207. 

Sherlock  v.  Ailing,  93  U.  S.  99 :  409. 
Shreveport    Case,    234    U.    S.    342: 

306. 
Skaneateles    Water    Works    Co.    v. 

Skaneateles,  184  U.  S.  354:  177. 
Slaughter  House  Cases,  16  Wallace, 

36:  97,  104,  116,  117,  352. 
Sligh  v.  KirJcwood,  237  U.  S.  52 :  410. 
Smith  v.  Alabama,   124  U.  S.  465: 

406. 
Smith  v.   Daniels,    118   Minn.    155: 

350. 

Smyth  v.  Ames,  169  U.  S.  466 :  426. 
Soon   Hing   v.   Crowley,    113  U.   S. 

703 :  359. 
South  Carolina  v.  United'  States,  199 

U.  S.  437 :  229. 
South  Dakota  v.  North  Carolina,  192 

U.  S.  286 :  153. 
Southern    Pacific    Co.    v.    Campbell, 

230  U.  S.  537:  177. 
Southern  By.  v.  Greene,  216  U.  S. 

400:  365. 
Southern  By.  v.  Beid,  222  U.  S.  424 : 

402. 

Spies  v.  Illinois,  123  U.  S.  131:  116. 
Spring     Valley     Water     Works     v. 

Schottler,  110  U.  S.  347:420. 
State  Tax  on  By.  Gross  Beceipts,  15 

Wallace,  293 :  420. 
State  v.  Bartlett,  55  Me.  200 :  326. 
State  v.  Bridgeman   &  Eussell   Co., 

117  Minn.   186:  366. 
State  v.  Carroll,  38  Conn.  449 :  11. 
State  v.  Drayton,  82  Neb.  254 :  366. 
State  v.  Edwards,  88  Me.  102:  421. 
State    v.    Fairmont    Creamery,    153 

Iowa,  702 :  366. 


TABLE  OF  CASES 


4:>,D 


State  v.  Height,  117  Iowa,  650:  115, 
323. 

State  v.  Jacksonville  Terminal  Co., 
41  Fla.  363:  421. 

State  v.  Julow,  129  Mo.  163 :  350. 

State  v.  Manuel,  4  Devereaux  and 
Battle,  20:  85. 

State  v.  Osawkee  Township,  14  Kan- 
sas, 418:211. 

State  v.  Snitzler,  143  Mo.  287:  211. 

State  v.  Standard  Oil  Co.,  Ill  Minn. 
85:  366. 

State  v.  Wapello  Co.,  9  Iowa,  308: 
207. 

State  v.  Zdanowicz,  69  N.  J.  L.  308 : 
115. 

State  Freight  Tar,  15  Wallace,  232 : 
292. 

St.  Louis  &  Iron  Mountain  By.  v. 
Taylor,  210  U.  8.  281 :  279. 

St.  Louis  Southwestern  Ry.  v.  Ar- 
kansas, 235  U.  8.  350:  11,  347. 

Steenerson  v.  Great  Northern  By., 
69  Minn.  353 :  427. 

Stone  v.  Farmers '  Loan  &  Trust  Co., 
116  U.  8.  307:  373. 

Stone  v.  Mississippi,  101  U.  8.  814: 
170,  315,  380. 

Stourbridge  Canal  v.  Wheeley,  2 
Barn,  ft  Adol.  793 :  173. 

Strader  v.  Graham,  10  Howard,  82: 
92. 

Strauder  v.  West  Virginia,  100  U.  8. 
303 :  97,  SSI. 

Sturges  v.  Crowninshield,  4  Whea- 
ton,  122 :  178. 

Sturges  &  Burn  Mfg.  Co.  v.  Beau- 
champ,  231  U.  8.  320 :  368. 


Talton  v.  Mayes,  163  U.  8.  376:  79. 
Tarble's  Cote,  13  Wallace,  397:55. 
Taylor  and  Marshall  v.  Kentucky, 

178  U.  8.  548:  152. 
Tennessee  v.  Sneed,  96  U.  8.  69: 

1«4. 
Terlinden  v.  Ames,  184  U.  8.  270: 

152. 
Textu  v.  White,  7  Wallace,  700:  46. 


Texas   &   Pacific   By.   v.    Interstate 

Commerce  Commission,  162  U.  8. 

197:  279. 
The  Daniel  Ball,  10  Wallace,  557: 

292,  308. 
The  Divina  Pastora,  4  Wheaton,  52 : 

152. 

The  Exchange,  7  Cranch,  116:  98. 
The  Nereide,  9  Cranch,  388:  152. 
The  Pelican,  Edw.  Adm.,  App.  D: 

153. 

The  Santissima   Trinidad,    7   Whea- 
ton, 283 :  152. 

The  Three  Friends,  166  U.  S.  1:  152. 
The  Winnebago,  205  U.  8.  354:  11. 
Thompson  v.  Union  Pacific  By.,  9 

Wallace,  579:  220. 
Thompson  v.  Utah,  170  U.  8.  343: 

79. 
Thorpe  v.  B.  &  V.  By.,  27  Vt.  143: 

373,  415. 

Tiaco  v.  Forbes,  228  U.  8.  549:  41. 
Tiger  v.  Western  Investment  Co., 

221  U.  8.  286:  152. 
Tindal  v.  Wesley,  167  U.S.  204:  132. 
Township  of  Pine  Grove  v.  Talcott, 

19  Wallace,  666:  184. 
Trade  Mark  Cases,  100  U.  8.  82:  11. 
Trebilcook   v.    Wilson,    12    Wallace, 

687:204. 

Trevett  v.  Weeden,  10. 
Twining  v.  State  of  New  Jersey,  211 

U.  8.  78 :  114,  319. 

U 

Union   Pacific   By.   v.  Peniston,   18 

Wallace,  5:  220. 
United  States  v.  Ah  Fawn,  57  Fed. 

591:41. 
United     States     v.     Arredondo,     6 

Peters,  691:  152. 
United  States  v.  Bitty,  208  U.   8. 

393:  41. 
United  States  v.  Cruikshank,  92  U. 

8.  542:  103,  117,  119. 
United   States   v.   Brig  William,   2 

Hall's  Law  Journal,  255:318. 
United  States  v.  D.  &  H.  By.,  213 

U.  8.  366:  10,  279,  318. 
United  States  v.  E.  C.  Knight  Co., 

156  U.  8.  1 :  958. 


440 


TABLE  OF  CASES 


United  States  v.   Holliday,   3  Wal- 
lace, 407:  152,  318. 
United  States  v.  Joint  Traffic  Asso- 
ciation, 171  U.  S.  505. 
United  States  v.  Ju  Toy,  198  U.  S. 

253 :  337. 
United  States  v.  Kagama,  118  U.  S. 

375:  35,  103. 
United  States  v.  Laws,   163  U.   S. 

258:40. 
United  States  v.  Lee,  106  U.  S.  196 : 

159. 
United  States  v.  Michigan,  190  U. 

S.  379:  156,  159. 
United  States  v.  North  Carolina,  136 

•U.  S.  211:  155,  156,  159. 
United    States   v.    Northern   Securi- 
ties Co.,  193  U.  S.  197:  279. 
United  States  v.  Ormsbee,  74  Fed. 

207:  421. 
United  States  v.  Palmer,  3  Wheaton, 

610 :  152. 
United  States  v.  Eealty  Co.,  163  U. 

S.  427:  11,  152. 
United    States   v.   Eeese,    92    U.    S. 

214:  119. 
United  States  v.  Eeynolds,  235  U.  S. 

133:  11. 
United  States  v.  Eodgers,  191  Fed. 

970:  41. 
United  States  v.  Sandoval,  231  U. 

S.  28 :  103. 
United    States   v.    Scott,    148    Fed. 

431 :  350. 
United  States  v.  Texas,  143  U.  S. 

621:  155,  159. 
United     States     v.     Trans-Missouri 

Freight   Assoc.,    166    U.    S.    290: 

263,  279. 
United  States  v.  Waddell,  112  U.  S. 

76:  317. 
United  States  v.  Williams,  194  U.  S. 

279:  40. 
United  States  v.  Williams,  203  Fed. 

155:41. 
United   States   v.    Wong   Kim   ArTc, 

169  U.  S.  649 :  94,  106. 
United  States  v.  Yong  Yew,  83  Fed. 

832 :  41. 


Van  Allen  v.  Assessors,  3  Wallace, 

573:  220. 
Vance  v.  Vandereook  Co.,  170  U.  S. 

438:229. 
Van   Sicklin   v.   Burlington,   27   Vt. 

70:  211. 
Veazie  Bank  v.  Fenno,  8  Wallace, 

533 :  199,  200,  220,  228. 
Vicksburg  v.  Vicksburg  Water  Co., 

202  U.  S.  453:  171. 
Virginia  v.  Eives,   100  U.   S.   313: 

119,  355. 
Virginia    v.    Tennessee,    158    U.    S. 

267:  159. 
Virginia  v.  West  Virginia,  238  U.  S. 

202:  159. 

W 

Wabash  Ey.  v.  Defiance,  167  U.  S. 

88:  407. 
Wadley    Southern    Ey.    v.    Georgia, 

235  U.  S.  651 :  338. 
Walker  v.   Sauvinet,  92   U.   S.   90: 

118. 
Walker   v.    Shasta    Power    Co.,    160 

Fed.  856:  421. 
Walker   v.   Whitehead,   16   Wallace, 

314:  184. 
Ware  &  Leland  v.   Mobile  County, 

209  U.  S.  405:  263. 
Warren  v.  Charlestown,  2  Gray,  84: 

242. 
Webster  v.  Eeid,  11  Howard,  437: 

65,  328. 

Welch  v.  Swasey,  214  U.  S.  91:  413. 
West  v.  Louisiana,  194  U.  S.  258: 

118. 
Western  Turf  Assoc.  v.  Greenberger, 

204  U.  S.  359:413. 
Western  Union  Tel.  Co.  v.  Call  Pub- 
lishing Co.,  181  U.  S.  92 :  420. 
West  v.  Louisiana,  194  U.  S.  258: 

118.    • 
Weston  v.  Charleston,  2  Peters,  449: 

199,  220. 
Wheeler  v.  Jackson,  137  U.  S.  245: 

184. 


TABLE  OF  CASES 


441 


Whiting  v.   Fond  da  Lac,  25  Wis. 

188:  207,  209. 

Wiley  v.  Sinkler,  179  U.  8.  58:  117. 
Wilkinson  v.  Leland,  2  Peters,  627: 

328. 
Willcox  v.  Consolidated  Gas  Co.,  212 

U.  8.  19:  339,  342,  425,  427. 
Williams  v.  Fear,  179  U.  8.  270:  263. 
Williams  v.   Suffolk  Insurance  Co., 

13  Peters,  415:  152. 
Willson   v.   Blackbird  Creek   Marsh 

Co.,  2  Peters,  245:392. 
Wilmington    Transportation    Co.    v. 

Cal.  B.  B.  Com.,  236  U.  S.  151: 

310. 
Wilson  v.   Eureka  City,   173  U.  8. 

32:  413. 
Winthrop  v.  Lechmere,  5  Mass.  Hist. 

Soc.  Coll.  (6th  Series),  440:  8. 


Wisconsin  v.  Pelican  Insurance  Co., 

127  U.  8.  265:  159. 
Woodruff    v.    I'arham,    8    Wallace, 

123:  263,  292. 
Woodruff   v.   Trapnall,   10   Howard, 

190:  195. 
Worcester  v.  Georgia,  6  Peters,  515: 

103,  147. 

Y 

Yamataya  v.  Fisher,  189  U.  8.  86: 

41,  338. 
Tick  Wo  v.  Hopkins,  118  U.  8.  356: 

76,  101,  112,  356. 


Zillmer    v.    Kreutzberg,    114    Wis. 
530:  350. 


INDEX 


ALIENS,  constitutional  rights  of,  76,  101;  exclusion  of,  36,  41;  expulsion 
of,  38,  41. 

ALLEGIANCE,  95,  101,  104. 

ANNKXKD  TERRITORY,  citizenship  of  inhabitants,  104;  power  to  admit 
to  Union,  68,  75,  78;  power  to  govern,  60,  90. 

ANTI-TRUST  ACT  OF  1890,  258,  262,  279,  310. 

ANTI-TRUST  ACT  OF  1914  (Clayton  Act),  279. 

ARTICLES  OF  CONFEDERATION,  government  under,  127,  146,  159, 
196,  247,  251,  282,  288. 

BANK,  power  of  Congress  to  incorporate,  13,  26,  199. 

BANKRUPTCY  LAWS,  179  seq.,  184. 

BILL  OF  BIGHTS,  Federal,  118,  319,  329. 

BILLS  OF  CBEDIT,  186  seq.,  191  seq.,  201,  223. 

CARRIERS.     See  Public  Callings. 

CHARTER,  as  a  contract,  162-169;  construction  of,  172  seq.;  reservation 
of  right  to  amend  or  repeal,  170. 

CHINESE,  citizenship  of,  94,  101,  102;  discrimination  against,  356  seq. 

CITIZENSHIP,  based  on  birth,  95,  101;  based  on  naturalization,  60,  75, 
83,  101,  102,  104;  effect  of  Fourteenth  Amendment  on,  97  seq.,  106; 
effect  of  slavery  on,  81  seq.,  103;  of  Indians,  103;  of  United  States  and 
State,  distinguished,  83,  101,  103,  106,  116. 

CLASS  LEGISLATION,  360-369,  397. 

COMMERCE,  interstate  and  foreign,  regulation  of,  46,  245-318,  383,  385, 
390,  400,  404,  420;  adoption  of  State  law  by  Congress,  269  seq.,  295 
seq.;  concurrent  or  exclusive  control  of,  266,  296,  383;  control  of  Con- 
gress over,  263,  289-296,  302,  307-313,  315,  371,  383,  390,  411;  control 
of  States  over.  264,  296,  307,  371  seq.,  383;  effect  of  "silence  of  Con- 
gress," 384,  388,  392;  includes  contracts  in  restraint  of  trade,  311, 
contracts  of  purchase  and  sale,  259,  intercourse,  248,  254,  navigation, 
248,  266,  294,  390,  telegraph,  254,  transportation,  385;  relation  of 
State  police  power  to,  268,  371  seq.,  383  seq.,  390  seq.,  400,  404,  409,  411 ; 
regulation,  what  is,  265,  294,  308,  310-318,  372;  regulation  by  embargo 
or  prohibition,  249,  314-318. 

CONSTITUTION  OF  THE  UNITED  STATES,  construction  of,  141,  146, 
•-'»:.  305,  333. 

CONSTITUTIONALITY  OF  EXECUTIVE  OB  LEGISLATIVE  ACTS, 
3-12;  acts  unconstitutional  in  part,  242;  appeals  from  colonial  courts 
to  the  King  in  Council,  7-9 ;  effect  of  an  unconstitutional  art,  1 1 ;  legis- 
lation against  common  right,  327,  334;  power  of  courts  to  determine, 
4-6,  140;  rules  governing  action  of  the  courts  on,  10,  11. 

CONTRACT,  restraints  on  freedom  of,  344  seq.,  350,  374,  403;  impairment 
of  obligation  of,  160  seq.;  obligation  of,  178,  184;  power  to  tax,  L'L'-J. 

CURRENCY,  power  of  Congress  over,  200,  223. 

DUE  PROCESS  OF  LAW,  90,  111,  114,  319-350,  374,  396;  equivalent  to 
"law  of  the  land,"  320,  326;   permits  variations  in  procedure, 
requires  an  ascertainable  standard  of  conduct,  330  seq.,  jurisdiction. 
323,  notice  and  opportunity  to  be  heard,  324,  opportunity  for  a  ju-li- 
rial  determination,  -840. 

ELEVENTH    AMENDMENT.   131,   137. 

EQUAL  PROTECTION  OF  THF.  LAWS,  111,  351-369,  374,  395,  397,  398. 

FIFTEENTH  AMENDMENT,  120  seq. 

FIFTH   AMENDMENT.  335,  344. 

FLORIDA,  ceKsion  of,  60,  69. 

FOREIGN  STATE,  what  is  a,  143  seq. 

443 


444  INDEX 

FOURTEENTH  AMENDMENT,  67,  97,  102,  105,  109,  114,  116,  328,  329, 
335,  348,  352,  357,  361,  364,  367,  374,  378,  414;  not  restricted  to  pro- 
tection of  citizens,  357,  or  of  negroes,  112;  view  of  Congress  as  to 
meaning  of,  113. 

FRANCHISES,   construction   of,   173   seq. 

GOVEENMENT  OF  THE  UNITED  STATES,  nature  of,  3,  15,  43,  45, 
47,  54,  57,  66,  77,  83,  109,  139,  140,  190,  231,  237,  256,  372,  384;  source 
of,  14;  supremacy  of,  16,  38,  54,  141,  217,  227,  231,  303. 

HAMILTON,  ALEXANDER,  on  implied  powers,  28;  on  power  of  courts 
to  declare  legislation  invalid,  10;  on  inherent  or  "resulting"  powers, 
34;  on  suits  by  an  individual  against  a  State,  131. 

HAWAII,  cession  of,  69. 

IMPLIED  POWERS,  12,  18,  28,  34. 

INDIANS,  constitutional  rights  of,  359;  political  status  of,  143  seq. 

INDICTMENT  BY  GRAND  JURY,  324  seq.  332  seq. 

INFORMATION,  substituted  for  indictment,  324,  336. 

INHERENT  POWERS  of  the  Federal  Government,  12,  34-36.  40,  60,  96, 
201,  203,  304. 

INSOLVENCY  LAWS,  180  seq. 

INSURANCE  is  not  commerce,  252  seq. 

INTERNATIONAL  RELATIONS,  36-38. 

INTERSTATE  COMMERCE  ACT,  279. 

JUDICIAL  POWER  OF  THE  UNITED  STATES,  2,  4,  6,  10,  55,  61,  72, 
128,  133,  143. 

JUDICIARY,  function  of,  137,  141;  power  to  compel  a  levy  of  taxes,  156; 
to  enforce  judgments,  156;  to  prevent  a  violation  of  the  law,  303;  to 
protect  contracts,  161. 

JUDICIARY  ACT  OF  1789,  138,  142. 

JURISDICTION  OF  UNITED  STATES  COURTS,  appellate,  139;  origi- 
nal, 153;  over  political  questions,  150;  over  suits  between  States,  153 
seq. 

JURY  TRIAL,  right  to,  63  seq.,  354;  in  the  District  of  Columbia,  62;  in 
the  States,  118,  324;  in  the  Territories,  65. 

JUSTICIABLE  CONTROVERSIES,  147. 

"LAW  OF  THE  LAND,"  320,  326. 

LEGAL  TENDER  NOTES,  195,  202  seq. 

LIBERTY,  meaning  of,  312,  343,  346,  357. 

LIQUOR  TRAFFIC,  control  of,  229,  377;  relation  to  interstate  commerce, 
384;  code  of  Hammurabi  on,  388;  legislation  of  Congress  on,  388. 

LOTTERIES,  regulation  of,  314  seq.,  380. 

LOUISIANA,  purchase  of,  67. 

MADISON,  on  suits  against  a  State,  131;  on  paper  money,  197. 

MAGNA  CHARTA,  320,  322,  326,  333,  414. 

MISSOURI  COMPROMISE,  89. 

MANUFACTURE  is  not  commerce,  259  seq. 

MONEY,  185  seq.;  power  to  borrow,  198.  201;  power  to  coin,  201,  203. 

NATURALIZATION,  83,  98,  101,  103,  104. 

"NECESSARY  AND  PROPER,"  19-27,  203,  247. 

NEGRO,  status  of,  82  seq.,  103,  106 ;  protected  by  Fourteenth  Amendment, 
112,  352;  exclusion  from  jury-service,  351  seq. 

ORDINANCE  OF  1787,  393. 

ORIGINAL  PACKAGE,  286,  292,  387. 

PILOTAGE  LAWS,  270,  293,  295,  298,  300. 

POLICE  POWER,  nature  of,  370,  375,  380,  411  seq.,  415;  of  the  States,  268, 
316,  347,  362,  372,  391;  of  the  United  States,  316;  preservation  of 
safety  and  order,  389-407;  promotion  of  general  welfare,  395,  407-413; 
protection  of  health,  370-377;  protection  of  morals,  377-389;  regula- 
tion of  public  callings,  413-427;  relation  to  liquor  traffic,  378  seq.; 
relation  of  Fourteenth  Amendment  to,  362,  380. 

POLITICAL  QUESTIONS,  39,  40,  148  seq. 

PORTO  RICO,  status  of,  66,  103. 

PRIVILEGES  AND  IMMUNITIES,  of  citizens  of  the  United  States,  43, 
44,  84,  104  seq.,  110,  114,  116  seq.;  of  citizens  of  the  States,  88,  108; 
of  citizens  of  annexed  territory,  60,  67,  75. 


INDEX  445 

PROPERTY,  deprivation  of  without  due  process,  360,  367,  379  Beq.,  403 
aeq.  416. 

PUBLIC  CALLINGS,  nature  of,  416,  420,  422;  restrictions  on  regulation 
of,  422  •  warehouse  companies,  417  seq. 

PUBLIC  SERVICE  COMPANIES,  230;  valuation  of,  426-7. 

RACE  DISCRIMINATION,  355,  356;  exclusion  of  negroes  from  jury 
service,  351  seq.;  denial  of  laundry  licenses  to  Chinese,  356-359. 

RATES,  regulation  of,  307,  340,  422  seq.;  basis  of  determining  reasonable, 
426-427;  confiscatory,  422-427;  discriminatory,  309. 

REPUBLICAN  FORM  OF  GOVERNMENT,  51,  74,  148,  152. 

RESTRAINT  OF  TRADE,  contracts  in,  262. 

8ELF-INCRIMINATION.    See  witness  against  one's  self. 

SLAVERY  IN  THE  UNITED  STATES,  abolition  of,  50,  67;  bearing  upon 
citizenship,  81  seq-J  effect  of  residence  in  free  territory,  89,  92;  pro- 
hibition of  in  the  Territories,  72,  90 ;  nature  of  property  in  slaves,  91 ; 
slave  trade,  270. 

STATES  OF  THE  UNION,  admission,  78;  equality  of,  53,  293;  relation  of 
to  the  Federal  Government,  18,  27,  44,  47,  56,  83,  109,  139,  141,  213, 
225,  230,  267,  309,  372,  383;  power  to  secede,  48,  53;  power  to  tax 
imports,  281  seq.;  suits  against,  126,  129  seq.,  133  seq.,  153;  what  con- 
stitutes a  suit  against,  132,  139. 

SUFFRAGE,  power  of  the  States  over,  122;  right  of  free  negroes  to  vote, 
85,  88;  relation  to  citizenship,  87;  under  the  Fifteenth  Amendment, 
120  seq. 

SUPREME  COURT  OF  THE  UNITED  STATES,  jurisdiction  of,  2,  46, 
49,  133  seq.  141,  153. 

TAXATION,  nature  of,  207,  213;  concurrent  Federal  and  State  power  of, 
267;  limitations  on  State's  power  of,  42,  44,  202,  212-220,  282,  291, 
292;  of  State  liquor  dispensaries,  230;  of  State  banks,  220-224;  of 
agencies  of  government,  212-220,  224-228,  231,  233,  241;  uniformity 
of,  67,  74;  direct,  220-221,  234-244;  of  income,  225,  239;  of  property  of 
a  State,  229  seq. 

TENTH  AMENDMENT,  198,  316. 

TERRITORIES,  application  of  the  Constitution  in,  70,  72,  74,  76,  78; 
incorporated  and  unincorporated,  70,  79 ;  power  of  Congress  in,  60  seq., 
70,  90;  relation  of  to  the  United  States,  66  seq.,  73. 

THIRTEENTH  AMENDMENT,  67. 

TREATY-MAKING  POWER,  59. 

WAR- POWER  OF  THE  UNITED  STATES,  55,  59;  suppression  of  the 
rebellion,  49. 

WASHINGTON,  GEORGE,  on  revision  of  the  Articles  of  Confederation, 
251. 

WEBSTER,  DANIEL,  as  to  power  of  Congress  to  regulate  commerce,  300; 
as  to  meaning  of  "law  of  the  land,"  329,  336. 

WITNESS  AGAINST  ONE'S  SELF,  114,  319,  321,  325;  history  of  ex- 
emption in  the  United  States,  115,  321;  not  a  privilege  of  citizens  of 
United  States.  118  seq. 

WILSON,  JAMES,  on  the  inherent  powers  of  the  Federal  Government,  34. 


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